List of top Legal Studies Questions

Read the excerpts from an opinion piece entitled "Labour Law Suspension: Hit The Workers When They Are Down" by Pranab Bardhan, Professor of Graduate School at the Department of Economics at the University of California, Berkeley, published by Bloomberg Quint and answer the questions below:
It is interesting that while Indian states are trying to suspend labour protection and make it easier for employers to sack workers, many other countries are trying to minimise lay-offs in this period of crisis by giving wage subsidy to employers to induce them to keep the workers on the payroll. These programs are an effort to reduce displacement, distress, and loss of worker morale, and at the time of economic recovery less friction and de-skilling. The wage subsidies are quite substantial in Europe, Canada, Australia, and New Zealand. It is also being attempted in some developing countries like Argentina, Bangladesh, Botswana, China, Malaysia, Philippines, South Africa, Thailand, and Turkey.
In the continuing sordid saga of callousness and brutality with the millions of suddenly unemployed migrant workers over the last six weeks since lockdown, an interesting fact to note is that employers who mostly had stopped paying them over this period, thus causing widespread hunger and homelessness, have lobbied with state governments to stop sending them back to their villages so that they remain available when the industries restart. I am actually in favour of a thorough overhaul. The current labour laws, tangled and outdated as they are, serve the long-term interests of neither the employers nor the workers. At the beginning of this century, the Second National Commission of Labour made a whole set of sensible recommendations for such an overhaul, but they remain largely unimplemented. I would support abolishing the firm size limit on labour retrenchment altogether, provided there is a provision for adequate unemployment benefits, both for regular and contract workers, and there is something like a state-provided universal basic income supplement as a fall-back option for everybody. "Allowing more flexibility in hiring and firing has to be combined, as part of a package deal, with a reasonable scheme of unemployment compensation from an earmarked fund, to which employers and employees should both regularly contribute." For far too long businesses in India, with some notable exceptions, have considered labour as a necessary but troublesome cog in the production machine, and the focus is to squeeze the maximum out of it with minimum pay and benefits while brandishing the threat of job insecurity. Organised labour, often under politicised partisan leadership from outside, has played that adversarial game. It is in the long-term interests of both sides to see at the ground level that labour-friendly practices can actually enhance long- term productivity and profitability. If cooperation can replace mutual suspicion and labour representatives can be trusted to participate in corporate governance as is the practice, say, in Germany and a few other European countries labour organisations can play a responsible role in achieving mutually beneficial goals. Taking the cover of the pandemic to unilaterally whittle down labour protections is going the opposite way, to distrust, and labour unrest.
Read the following passage carefully and then answer the accompanying questions employing the concepts provided in the passage:
According to Hohfeld, legal relationships can exist only between two legal persons and one thing. One of the two persons always has a legal advantage (that's the right) over the other. The other person has the corresponding legal disadvantage. ... For example employer employee. The basic building block of legal rights is liberty. It allows one person to do exactly as she pleases with no duty to do otherwise. ... But ... the important thing about a liberty: No one is required to respect it. It is merely a “permission without a protection”. For example, I can enjoy the view of my neighbour's garden but he is not under a duty to protect my view and can screen it off.
A “claim” entitles one person to limit the liberty of another, who then has a duty either to act or not to act in certain ways toward the claimant. For example, a child's claim to maintenance from parents places a duty on parents to provide maintenance. In personam claims can be made against a definite number of persons whilst in rem claims are available against every person in the world. ...An immunity disables one person from interfering with the liberty of another...Claims tell us what we should not do. Immunities tell us what we cannot do. ... For example, a public official cannot be prosecuted without special permission. A “power” is an ability that the law gives a person to (realise) her own legal rights or the rights of someone else (for example the power to sue). Its correlate, the liability carries the sense of exposure to having one's legal status changed. For example, only a person with locus in a case can file a litigation to press his claims.
[Adapted from Steven Wise, Rattling the Cage Towards Legal Rights of Animals) (2000)]
Read the extracts of leading judicial pronouncement and answer the questions below:
1. What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case. Therefore, the simple question that needs to be answered in this case is only whether triple talaq has any legal sanctity. That is no more res integra. This Court in [1] has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, in terms of Article 141 [1] is the law that is applicable in India.
2. Having said that, I shall also make an independent endeavour to explain the legal position in [1] and lay down the law explicitly.
3. [2] was enacted to put an end to the unholy, oppressive and discriminatory customs and usages in the Muslim community. Section 2 is most relevant in the face of the present controversy.
Application of Personal law to Muslims. - Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be Muslim Personal Law (Shariat).
The Principles of state responsibility dictate that states are accountable for breaches of International Law. Such breaches of treaty or customary international law enable the injured state to maintain a claim against the violating state, whether by way of diplomatic action or by way of recourse to international mechanisms where such are in place with regard to subject matter in issue. Recourse to International Arbitration or to the International Court of Justice is also possible provided the necessary jurisdictional basis has been established. Customary International Law imposes several important fundamental obligations upon the States in the area of environmental protection. The view that the International law supports an approach predicated upon absolute territorial sovereignty, so that a state could do as it liked irrespective of the consequences upon other states has long been discredited. The basic duty upon states is not so to act as to injure the rights of other states. This duty has evolved partly out of the regime concerned with international waterways. In the [1] case, the Permanent Court of International Justice noted that 'this community of interest in a navigable river becomes the basis of common legal right, the essential features of which are the perfect equality of all riparian states in the use of the whole course of the river and the exclusion of any preferential privileges of any riparian state in relation to others.'. But the principle is of far wide application. It was held in [2] case that the concept of territorial sovereignty incorporated an obligation to protect within the territory the rights of other states. It has now been established that it was an obligation of every state to not to allow knowingly its territory to be used for acts contrary to the rights of other states. This judicial approach has now been widely reaffirmed in international instruments. Article [3] of the Law of Sea Convention, 1982 provides that 'states shall take all measures necessary to ensure that activities under their jurisdiction and control are so conducted as not to cause damage by pollution to other states and their environment.' It is sometimes argued that the appropriate standard for the conduct of states in this field is that of strict liability. In other words, states are under an absolute obligation to prevent pollution and are thus liable for its effects irrespective of fault.
Article 20(1) of the Indian Constitution prohibits Ex Post Facto laws. The expression Ex Post Facto Law means a law, which imposes penalties or convictions on the acts already done and increases the penalty for such acts. In other words, Ex Post Facto Law, imposes penalties retrospectively. For example, The Dowry Prohibition Act, 1961 came into force from 20.5.1961. A person guilty of accepting dowry is punishable under the Act after 20.5.1961 and not before 20.5.1961.
Ex post facto laws are of three kinds as follows:(a) A law which declared some act or omission as an offence for the first time after the completion of that act or omission. (b) A law which enhances the punishment or penalty for an offence subsequent to the commission of that offence. (c) A law which prescribes a new and different procedure for the prosecution of an offence subsequent to the commission of that offence.
Clause (1) of Art. 20 provides protection only in respect of the above first two categories of expost facto laws i.e. laws which declare acts as offences subsequent to the commission to those acts and laws which enhance the penalty subsequently.
Article 20(1) provides: No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The first part of clause (1) provides that no person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence. The second part of clause (1) protects a person form a penalty greater than that which he might have been subjected to at the time of the commission of the offence.
Common intention implies a pre-arranged plan and acting in concert pursuant to the plan. Common intention comes into being prior to the commission of the act, which need not be a long gap. To bring common intention into effect a pre-concert is not necessarily be proved, but it may well develop on the spot as between a number of persons and could be inferred from facts and circumstances of each case. For example A and B caught hold of C where only B stabbed C with a knife but A is also liable for murder as there was a pre concerted action. In the case Pandurang v. State of Hyderabad, Supreme court emphasized on this point that prior concert need not be something always very much prior to the incident, but could well be something that may develop on the spot, on the spur of the moment.
Common Intention and Similar Intention
Common intention does not mean similar intention of several persons. To constitute common intention it is necessary that the intention of each one of them be known to the rest of them and shared by them. In the case of Dukhmochan Pandey v. State of Bihar, the Supreme Court, held that: “Common intention which developed at the spur of the moment is different from the similar intention actuated a number of person at the same time….the distinction between a common intention and similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice….” The mere presence of accused together is not sufficient to hold that they shared the common intention to commit the offence in question. It is necessary that the intention of each one of 'several persons‘ be known to each other for constituting common intention.
Tension prevailed in the Jawahar area in Palghar district after three Mumbai residents, travelling in a Ford Ecosport to Silvassa, were allegedly lynched late on Thursday night. The Kasa police said the incident occurred near Gadakchinchale village under their jurisdiction. “Information received by us indicates that the three occupants of the SUV hailed form Kandivali in Mumbai and were going to attend a funeral in Silvassa,” Superintendent of Police Gaurav Singh, Palghar police said. A large mob of villagers surrounded the car within a matter of minutes and started attacking it with sticks, irons rods and their bare hands, leading to the death of all three occupants. “One of our patrolling vehicles later spotted the severely injured trio lying on the road and stopped to find out the matter. However, our team was also attacked by the mob and the vehicle pelted with stones. Our personnel had to flee and were unable to rescue to the victims,” an officer with the Kasa police said. A wireless alert was sent out later apprising all police stations and units of the incident following which reinforcements were sent to the village and a combing operation was undertaken. “Prima facie information indicates that the trio were mistaken for thieves and attacked. The villagers were on edge due to the ongoing lockdown and unavailability of essential supplies. For the past few days, several rumours have been doing the rounds on social media about thieves and dacoits targetting villages on the highway. As a result, villagers have been patrolling the highway and stopping late night travellers on suspicion,” the officer said
Source: Excerpt from The Hindu, written by Alok Deshpande (22/04/2020)
Principle of Natural Justice is derived from the word „Jus Natural‟ of the Roman law and it is closely related to Common law and moral principles but is not codified. It is a law of nature which is not derived from any statute or constitution. The principle of Natural Justice is adhered to by all the citizens of civilised State with Supreme importance. Natural justice simply means to make a sensible and reasonable decision making procedure on a particular issue. Sometimes, it doesn‘t matter what is the reasonable decision but in the end, what matters is the procedure and who all are engaged in taking the reasonable decision. It is not restricted within the concept of 'fairness‘ it has different colors and shades which vary from the context. Basically, natural justice consists of 3 rules.
The first one is “Hearing rule” which states that the person or party who is affected by the decision made by the Panel of expert members should be given a fair opportunity to express his point of view to defend himself. Secondly, “Bias rule" generally expresses that Panel of expert should be free from bias while taking the decision. The decision should be given in a free and fair manner which can fulfil the rule of natural justice. And thirdly, “Reasoned Decision” which states that order, decision or judgement of the Court given by the Presiding authorities with a valid and reasonable ground. The principles of Natural Justice have been adopted and followed by the judiciary to protect public rights against the arbitrary decision by the administrative authority. One can easily see that the rule of natural justice include the concept of fairness: they stay alive and support to safeguard the fair dealing.
Source: Excerpt taken from blog.ipleaders.in (Dated - 12th June, 2019)
On 7th May 2020, a major leakage of Styrene gas was reported from the plastics-manufacturing plant 'LG Polymers' located on the outskirts of the Visakhapatnam city. The accident took place when the cooling system of a polymers plant got clogged due to the mismanagement of factory workers and resulted in turning the city into a gas chamber. The gas which leaked was styrene gas, which is a 'hazardous chemical‘ under Rule 2(e) plus Entry 583 of Schedule I of the Manufacture, Storage and Import of Hazardous Chemical Rules 1989.
Principle 1: Polluter Pays Principle
The 'Doctrine of Polluter Pays' is a well-established principle of environmental law, which places an obligation of compensating the damage to the people who ought to reimburse it and also have the capacity to disburse it. The principle explicitly affirms that the person who damages or destructs the environment has the absolute obligation to bear the cost of ameliorating the environment. In Enviro Legal Action v. Union of India case, the Apex Court of India held that the polluter is legally responsible to reimburse the individual sufferers as well as pay for the revitalization of the damaged environment.
Principle 2: Principle of Strict Liability
The principle of Strict Liability was established in the year 1868 in the case of Rylands v. Fletcher, where the Court held that any person who uses his/her land in an 'unnatural manner' and who keeps any 'hazardous substance' on such premises would be held liable under the principle of strict liability for any 'damage' occurred on the 'escape' of such perilous substance. However, the person is liable only when there is non-natural use of land; the principle also restricts liability when the escape is due to an act of strangers, Act of God, for example a natural calamity; due to the person injured or when it happens with the consent of the person injured or with statutory authority.
Principle 3: Principle of Absolute Liability
The absolute liability is a stringent form of Strict Liability as it is devoid of any exceptions that were mentioned under the earlier principle. for the first time in the case of M.C. Mehta v. Union of India. This principle implies that whenever an enterprise is engaged in any dangerous or hazardous activity that threatens the people working in the enterprise and those living nearby, it owes an absolute and non-delegable duty to the community that no harm will be caused. If harm is indeed caused, the enterprise will have to compensate for damages, and can‘t use exceptions provided in the case of strict liability. The enterprise can‘t claim that the harm has not been caused due to negligence (absence of due care) or that it had taken all reasonable precautions.
The issue of Obscenity has vexed the Courts in India and abroad for a long time now. The intriguing question has always been the same, i.e., what should be the standards to qualify something as obscene in the eyes of law? In the United Kingdom, way back in 1868, the Court laid down the Hicklin test in Regina v. Hicklin (1868 L.R. 2 Q.B. 360), and held that: “The test of Obscenity is whether the tendency of the matter charged as Obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.” Hicklin test postulated that a publication has to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak minded adults. However, this test was later rejected by most of the jurisdictions. There were many judgments where it was stipulated by the Indian Courts that, Obscenity has to be judged in the context of contemporary social mores, current socio-moral attitude of the community and the prevalent norms of acceptability/ susceptibility of the community, in relation to matters in issue. [For example, in Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881; Chandrakant Kalyandas Kakodar v. State of Maharashtra 1969 (2) SCC 687 etc.] These judgements indicated that the concept of Obscenity would change with the passage of time and what might have been “obscene” at one point of time would not be considered as obscene at a later period. This came to be known as “Community Standards Test”. In Bobby Art International & Ors. v. Om Pal Singh Hoon (1996) 4 SCC 1, the Court, upholding the Community standards test held that, complete message and context of the objectionable scene/firm/picture etc., needs to be examined in order to find out whether the alleged material is obscene or not.
The COVID-19 pandemic has taken the entire world hostage in less than four months, and the global economy has been hit the hardest with governments across the globe implementing stringent policies including lockdown to control the coronavirus outbreak. The pandemic today presents unprecedented challenges and impediments to businesses in conducting their normal operations. The lockdown across the world has caused delays in the performance of contracts and transactions. Now, the question that arises is whether the current situation can enable parties to a contract to alter their obligations with non-compliance of terms neither being regarded as a "default committed by any party" nor a "breach of contract"? There are certain well-accepted practices for dealing with such extraordinary situations in commercial transactions by the inclusion of force majeure & material adverse effect (MAE) clauses. Determination of the types of circumstances so covered by the force majeure clause contained in a contract is essential. Provisions of force majeure often cover natural disasters like hurricanes, floods, and earthquakes as "acts of God." Other covered events may include war, terrorism, civil disorder, fire, disease medical epidemics or by reasons of applicable laws or regulations. Broadly, the Courts have interpreted the term "Force Majeure" as an event that can neither be anticipated nor controlled by either of the contracting parties. A force majeure clause applies in the context of ongoing contractual arrangements, whereas, an MAE or material adverse change (MAC) clause applies to the allocation of risk in transactions before their closure or completion. Pandemic and related consequences such as government action is a type of event covered by a force majeure clause, however, its impact on the affected party's ability to perform its contractual obligations may vary depending upon contractual terms. It is common for force majeure clauses to specify the impact that the event or circumstances in question must have, in order for the clause to be triggered. References may be made, for example, to the event or circumstances having "prevented", "hindered" or "delayed" performance. These terms require different levels of impact on performance before a party can claim recourse to these clauses. In other words, the force majeure and MAC clauses act as an exception to what would otherwise be treated as a breach of contract. Certain contracts may state that, if a force majeure clause is applied, the contract may automatically be terminated. On the other hand, some contracts may even state that the duty to fulfil the contractual obligation may be suspended for a certain period of time and if the force majeure event is not curbed or treated even after such time, then eventually the contract may be terminated. Though there cannot be a one-size-fits-all solution to this question, and it depends upon how the force majeure clause is worded in a specific contract; and in the absence of the same, applicable laws related to the same will be required to be taken into consideration.