UPSC LAW OPTIONAL MAINS ALL INDIA FREE WRITING PRACTISE CHALLENGE

WHY THIS CHALLENGE ?

We know UPSC is full of surprises and known for asking tricky questions, and this aspect of UPSC must not push you down in actual mains. Therefore lawxpertsmv team has decided to conduct this ALL INDIA CHALLENGE to give aspirants the best UPSC LAW OPTIONAL TRICKY QUESTION SIMULATION.

Ans: Section 376D of the Indian Penal Code provides-

“Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine.”

It provides that when persons constituting a group concerts with common intention to commit rape and one of them commit it, then all the members of that group shall be vicariously liability.

In the given preposition, group of persons including a woman member, shared common intention to commit rape of victim and in furtherance of that common intention some members of the group committed rape and woman member facilitated the commission of that offence. Therefore the liability of group members is discussed as following:

a)Members the group who did not participate in commission of the offence-

Language of Section 376D of the Indian Penal Code, 1860 clearly provides for vicarious liability of all the associates where any person or persons out of them commits rape.

b)Members who committed rape-When person constituting a group commit the offence of rape after sharing common intention to do so, then every person who is a part of that group whether he actively committed the offence or not is liable under Section 376D read with Section 34 of the IPC.

Manohar v. State, 2019 SC

In this case, accused committed gang rape of 10 year old and murdered her and her brother. The Supreme Court awarded death sentence to the both the accused.

In another landmark case, Nirbhaya gang rape case, accused who brutally assaulted and committed rape on woman in a private bus were executed to death by the apex court.

c)The sole lady member who lend full facilities for the commission of rape-

In Priya Patel v. State of MP, (2006) SC, the question before the court was can a woman be charged for committing gang rape under Section 376D of IPC?

In this case, Supreme Court acquitted the woman Priya Patel for the offence of gang rape that there cannot intention to commit rape as woman is incapable of committing rape of a woman.

Therefore she cannot be held liable for rape but can be made liable for abetting the offence of gang rape as per section 107 IPC. Another point to note is section 375 mentions "man " , although legally speaking he includes she, but this section is not gender neutral. Its high time to make clear gender neutral rape laws.

Consider a situation A, B and C are friends all three plans to loot a gold house, in this A and B act where C helps out with only idea or mental facilitation because he is bed ridden. He is incapable of committing theft, still he is liable for theft as per section 34 IPC. Is physical impossibility still a reason to let go a person from offence of rape ? It is for the Supreme Court or legislature to set rest to these issues.

Ans. Section 23 of the Indian Contract Act, 1872 provides that consideration or object of an agreement is unlawful if it is forbidden by law or if permitted it would defeat provisions of law or is opposed to public policy.

Under section 124 of the Indian Evidence Act even in courts public officer cannot be compelled to disclose official communications when he considers that public interests would be suffered by that disclosure.

Therefore, Government officer receiving a cheque in consideration of agreement to pass on intelligence inputs is void as the object for it is unlawful.

Whether such cheque can be enforceable under Section 138 of the Negotiable Instruments Act.

Section 138 of the NI Act provides for dishonor of cheques for insufficiency of funds in the account. It provides that a person must have drawn a cheque for payment of money to another person from out of his account maintained with the bank. This cheque must be to discharge any debt or liability.

Explanation to this Section provides-

‘Debt or other liability’ means a legally enforceable debt or other liability.

As the agreement is void, due to unlawful consideration, therefore such cheque cannot be considered as a legally enforceable debt. Thus, the provisions of Section 138 of Negotiable Instruments Act does not apply and such cheque cannot be enforced.

Nanda v. Nandkishor, 2010 Bom.

It was held that complainant must have received the dishonoured cheque against a ‘legally enforceable debt or liability’.

In Devender Kumar v. Khem Chand, 2015, the court observed that the following three ingredients must be satisfied for application of Section 138 of NI Act-

i.That there should be legally enforceable debt.

ii.That the cheque should have been drawn from the account of the bank for discharge in whole or part f any debt or other liability which pre-supposes legally enforceable debt.

iii.That the cheque so issued is dishonoured for insufficiency of funds.

Legally enforceable liability of the drawer under Section 138 and 139 of NI Act

Ingredients of Section 138 -

• Person must have drawn a cheque for payment of money to another person such discharge of legally enforceable debt or other liability.

• He should have presented the cheque to the bank within six months period from the date on which cheque was drawn or within its validity period.

• But the cheque is dishonored by the bank (returned unpaid) for any of the two reasons-

a)Insufficiency of funds in the account, or

b)If cheque amount exceeds the amount arranged to be paid from that account by an agreement made with the bank

• In that case, the payee should give a notice in writing to the drawer for payment of money and this notice must be given within 30 days of the receipt of information by him from bank regarding dishonor of cheque.

• If the drawer fails to make the payment of money to payee within 15 days of the receipt of the notice, then the payee can approach the court.

As per the provisions of Section 139, the court shall presume that holder of cheque has received the cheque of a nature referred to under Section 138 but it is a rebuttable presumption.

Uttam Ram v. Devinder Singh Hudan 2019 10 SCC 287

In this case, the Supreme Court held that burden to prove the due amount must not be on complainant as under Section 139, burden to rebut the presumption in cases of dishonor of cheque is upon the accused.

Penalty for offence under Section 138-

The person who is an accused under Section 138 of NI Act shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque or both.

This question is from Law of Torts : Conspiracy ( Note criminal conspiracy is different from conspiracy in tort ) and in essence means the following 

Meaning : When one person does an act no legal right is infringed therefore not resulting in damages but if the same act is done in combination then it gives rise to violation of legal right therefore wanting damages

QUESTION IS BASED ON A CASE : Quinn v. Leathem 

Facts of the case :  A trade union wanted to enforce a closed shop agreement against Leathem's butcher business.

So what did they do ?  They approached one of his customers and told him that he should refuse to trade with Leathem unless Leathem employed only workers who joined the trade union.

The threat and violation of legal right - causing legal injury | They said that if Munce did not do as they wished, they would call a strike among Munce's own workers. Munce had been buying Leathem's beef for 20 years, but there had been no written contract about it, and none of Munce's workers had yet been induced to strike (break their contracts).

WORDS OF COURT | The House of Lords held that there was a "conspiracy to injure", which consisted in the intention to cause harm to others.

It is perfectly lawful for one person acting alone to attempt that. However, if it is two or more, it suddenly becomes unlawful, and liability in tort follows: "It is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference"

EXPLAINED !  A combination not to work is one thing, and is lawful. A combination to prevent others from working by annoying them if they do is a very different thing, and is primâ facie unlawful. Again, not to work oneself is lawful so long as one keeps off the poor-rates, but to order men not to work when they are willing to work is another thing. A threat to call men out given by a trade union official to an employer of men belonging to the union and willing to work with him is a form of coercion, intimidation, molestation, or annoyance to them and to him very difficult to resist, and, to say the least, requiring justification.

As the WTO Appellate Body stated in EC – Tariff Preferences, it is well settled that the MFN treatment obligation set out in Article I:1 of the GATT 1994 is a ‘cornerstone of the GATT’ and ‘one of the pillars of the WTO trading system’

Article I:1 of the GATT 1994 prohibits discrimination between like products originating in, or destined for, different countries. The principal purpose of the MFN treatment obligation is to ensure equality of opportunity to import from, or to export to, all WTO Members.

The MFN treatment obligation concerns ‘any advantage, favour, privilege or immunity’ granted by any Member to any product originating in, or destined for, any other country with respect to: customs duties/tariffs and among others.

The MFN treatment obligation not only concerns advantages granted to other WTO Members, but advantages granted to all other countries (including non-WTO Members).

If a Member grants an advantage to a non-Member, Article I:1 obliges the Member to grant that advantage also to all WTO Members.

Once a WTO Member has granted an advantage to imports from a country, it cannot make the granting of that advantage to imports of other WTO Members conditional upon those other WTO Members ‘giving something in return’ or ‘paying’ for the advantage.

However, this issue is not-so-simple. As the Article XXVIII bis of the GATT 1994 calls for ‘[tariff] negotiations on a reciprocal and mutually advantageous basis’.

Principle of reciprocity and mutual advantage entails that when a Member requests another Member to reduce its customs duties on certain products, it must be ready to reduce its own customs duties on products which the other Member exports, or wishes to export.

However, in the tariff negotiation, reduction of tariff is done only when equivalent value to the tariff reductions offered by other party.

Reciprocity cannot be established or measured in general, rather it is every member who determines for itself whether the economic value of the tariff reductions received is equal to the value of the tariff reductions granted. The final assessment of the ‘acceptability’ of the outcome of tariff negotiations is primarily political in nature.

Further, principle of reciprocity will be not applicable in sensu strictu in relation to tariff negotiations between

• developed and developing-country Members.

• Developed and least-developed-country Members.

Therefore, the Other WTO members can claim the same tariff level for Product ‘A’ from country ‘X’. But it is for the country ‘X’ to reduce the tariff to others, based on the ‘bound’ and ‘applied’ rates of tariff schedule prevailing on that time.

LIKE PRODUCTS: Article I:1 concerns any product originating in or destined for any other country and requires that an advantage granted to such products shall be accorded to ‘like products’ originating in or destined for the territories of all other Members. It is only between ‘like products’ that the MFN treatment obligation applies and that discrimination is prohibited.

As the Appellate Body considered in EC – Asbestos in its examination of the concept of ‘like products’ under Article III:4, the dictionary meaning of ‘like’ suggests that ‘like products’ are products that share a number of identical or similar characteristics.

This ‘Like Product’ concept is the foundation of the two central principles of the World Trade Organisation (WTO) system as outlined in the General Agreement on Tariffs and Trade 1947 (GATT): Most Favoured Nation (Article I) and National Treatment (Article III).If two products cannot be differentiated under the WTO system/GATT then the non-discrimination principle stipulates that a WTO trading member shall not discriminate between like products from different trading partners (giving them equally “most favoured-nation” status) and shall not discriminate between its own and like foreign products (giving them “national treatment”). In essence, if two products are found to be ‘like’ then the issue is whether the foreign product is treated less favourable than the domestic product or another foreign product.

In determining “like products” under the first sentence of Article III: 2, the following four factors are considered: (1) the product’s properties, nature and quality, (2) the product’s end uses, (3) consumer tastes and habits, and (4) tariff classification. 

MEANING OF CONSTITUTIONAL CONVENTION:

Legal and non-legal norms together constitute what we call as “Constitutional law” today. Norms which are enforced, applied and justiciable by the courts is ‘Legal’ whereas the ‘Non-legal’ norms ae one which arise in course of time as a result of practices followed over and over again. These ‘non-legal’ norms are said to be ‘Constitutional Conventions’.

Keeton observed that Constitutional Conventions need not be enforced in courts, as they are observed consistently and their non-observance will lead to political fracas or even worse, a bloody revolution.

However this distinction itself is not relevant as our Apex Court in Supreme Court Advocates-on-record Association v. Union of India (1993) 4 SCC 441 : (AIR 1994 SC 268) has held that, "We are of the view that there is no distinction between the constitutional law and an established constitutional convention and both are binding in the fields of their operation. Once it is established to the satisfaction of the Court that a particular convention exists and is operating then the convention becomes a part of the constitutional law of the land and can be enforced in the like manner."

RELEVANCE OF CONSTITUTIONAL CONVENTIONS IN LENGTHY WRITTEN INDIAN CONSTITUTION

Constitutional conventions are a means of bringing about constitutional development without any formal changes in the law. These conventions change otherwise rigid law to usher in social needs and changing political ideas.

Britain is classical example where the conventions play a very active role, but its role in the Indian constitution is not insignificant. This is because the written constitution, like ours, cannot provide for every eventuality. Constitutional conventions provide the flesh which clothes the dry bones of the law.

Constitutional conventions are vital in so far as they fill up the gaps in the Constitution itself; help solve problems of interpretation and allow for the future development of the constitutional framework whatever, the nature of the Constitution.

They make the legal constitutional work, they keep in touch with the growth of the ideas. A Constitution does not work by itself. It has to be worked by men. It is an instrument of national cooperation and the spirit of co-operation is as necessary as the instrumnet. The constitutional conventions are the rules elaborated for effecting that co-operation. Men have to work the old law in order to satisfy the new needs, constitutional conventions are the rules which they elaborate.

This has affirmed by the Supreme court of India in S.P. Anand v H.D. Dev Gowda, where it was held: “Conventions grow from longstanding accepted practice or by agreement in areas where the law is silent and such a convention would not breach the law, but fill the gap.”

These conventions are enforced because of political sanction or public opinion.

There are instances where the courts in India, and abroad, have recognised and applied the constitutional conventions.

• Carltona Ltd. v. Commissioners of Works;

• Madzimbamuto v. Lardner-Burke;

• Att. Gen. v. Jonathan Cape Ltd.,

• Adegbenx v. Akintola,

• Re Amendment of the Constitution of Canada,

• Ram Jawaya v. State of Punjab;

• U.N.R. Rao v. Indira Gandhi;

• Samsher Singh v. State of Punjab.

With the judicial recognition of conventions, the distinction between law and conventions has become blurred in course of time

EXAMPLES OF CONSTITUTIONAL CONVENTIONS IN INDIA | MATTERS DETERMINED BY CONVENTIONS :

1.The relationship between the President or the State Governor and his Council of Ministers,

2.The concept of ministerial responsibility for acts of the officials,

3.The relationship between the Prime Minister or the Chief Minister in a State and his Council of Ministers,

4.The appointment of a State Governor,

5.Dissolution of the Lok Sabha or of a State Legislative Assembly by the President or the Governor respectively,

6.The relations between the President and the Governor,

are some of the matters which are left to be evolved by conventions.

BRITISH CONVENTIONS DOES NOT ALWAYS TRANSLATE TO INDIAN CONVENTION : British convention are not automatically accepted as part of Indian Constitutional Law. Rather every relevant convention is questioned, and new conventions emerge in this process.

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