Most probable questions on the Constitutional Law of India, Indian Penal Code, Law of Contract and Law of Torts for Odisha Judicial Service (OJS) mains examination!
Q.1. What are the legislative powers of the President?
[Assam Judicial Service (Grade-III) Written Examination, 2015]
What are the legislative powers of the President of India?
[Assam Judicial Service (Grade-III) Written Examination, 2011]
Ans. The Parliament of India is composed with the President, Lok Sabha and Rajya Sabha so President of India is an inseparable part of Indian Parliament. He is the Constitutional Head of Indian Republic. He plays very important role in law making process. Without his signature, a Bill passed by both the Houses cannot take the form of law.
Some of his legislative powers are as under:
i. He addresses the Parliament at the beginning of the budget session every year and also at the beginning of the first session after the Lok Sabha elections.
ii. He nominates 12 members from the fields of science, arts, social services and literature to the upper house and nominates 2 members from the Anglo – Indian community to the lower house.
iii. He has veto powers under Article 111 of the Constitution. Under this power, he may give his assent to Bill, may withhold his assent to the Bill or may return the Bill.
iv. He can summon the joint sitting of both the houses of Parliament which is presided by the speaker of the Lok Sabha.
v. He has the power of to summon and prorogue both the House of Parliament. He can also dissolve the House of the People before the expiry of its term.
vi. He lays reports of CAG, UPSC, finance commission and others before the parliament.
Additionally, the President of India has ordinance making power under Article 123 of the Constitution. When the Parliament is not in session, the President may issue an ordinance. It has the same force as the law or Parliament. But it must be placed before the Parliament when it again assembles.
If it is then approved by both the Houses of Parliament, it will cease to operate after six weeks of the date of meeting of Parliament. And the President can call a joint session of both Houses of Parliament to resolve a constitutional deadlock over a public Bill.
Supreme Court of India in A. K. Roy v. Union of India, 1982 SCR (2) 272 observed that the power of the President to issue an ordinance under Article 123 of the Constitution is a legislative and not an executive power.
From a conspectus of the provisions of the Constitution it is clear that the Constituent Assembly was of the view that the President’s power to legislate by issuing an ordinance is as necessary for the peace and good government of the country as the Parliament’s power to legislate by passing laws.
The mechanics of the Presidents legislative power was devised evidently in order to take care of urgent situations which cannot brook delay. The Parliamentary process of legislation is comparatively tardy and can conceivably be time consuming.
It is true that it is not easy to accept with equanimity the proposition that the executive can indulge in legislative activity but the Constitution is what it says and not what one would like it to be.
The Constituent Assembly indubitably thought, despite the strong and adverse impact which the Governor-General’s ordinance making power had produced on the Indian community in the pre-independence era, that it was necessary to equip the President with legislative powers in urgent situations.
Q.2. Explain the principle of collective responsibility of Council of Ministers?
[Assam Judicial Service (Grade-III) Written Examination, 2013]
Ans. Collective responsibility means that all the Ministers are collectively responsible before the Parliament for all acts of commission and omission of the Executive. Gujarat High Court in Dattaji Chirandas v. State of Gujarat, AIR 1999 Guj 48 observed that collective responsibility means all Ministers share collective responsibility even for decisions in which they have taken no part whatsoever or in which they might have dissented at the meeting of the Council of Ministers.
Collective responsibility means that members of Council of Ministers express a common opinion. It means unanimity and confidentiality.
The principle of collective responsibility is the bedrock of the parliamentary system. The object of collective responsibility is to make the whole body of persons holding Ministerial office collectively, or, if one may so put it, “vicariously” responsible for such acts of the others as are referable to their collective volition so that, even if an individual may not be personally responsible for it. Yet, he will be deemed to share the responsibility with those who may have actually committed some wrong.
The history of the principle, of collective responsibility in England shows that it was originally developed as against the King. The ministers maintained a common front against the king, accepted joint and several responsibility for their decisions whether they agreed with them or not, and resigned in a body if the king refused to accept their advice.
In relation to, the British Parliament, collective responsibility means that the cabinet presents a common front. In Melbourne’s famous phrase, ‘the cabinet ministers must all say the same thing’.
The principle of collective responsibility perhaps compels Ministers to compromise with their conscience but in matters of policy they have to speak with one voice, each one of them being responsible for the decision taken by the cabinet.
The relevant part of the Indian Constitution providing regarding collective responsibility are contained in Articles 75 (3) and 164 (2) as-75 (3)-
The Council of Ministers shall be collectively responsible to the House of the People. 164 (2)-
The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
The essence of collective responsibility of the Council of Ministers is that the Cabinet is responsible to the Legislature for every action taken in any of the ministries. In other words the principle of collective responsibility governs only those acts which a Minister performs or can reasonably be said to have performed in the lawful discharge of his official functions.
Q.3. What is the scope of Article 136 of the Constitution of India? Write very briefly.
[Advocates-on-Record Examination, 2012]
Ans. The Apex Court of India, Supreme Court, has been granted special powers in respect of granting special leave to appeal against any order/decree/judgement in any matter by any court/tribunal in the territory of India in Article 136 which is as under-
136. Special leave to appeal by the Supreme Court (1) Notwithstanding anything in this article, the Supreme Court may; in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
It is evident from Article 136 (2) that the this power of Supreme Court is not available in case of any judgement/order of any court/tribunal which is constituted by/under any law relating to Armed forces.
The power vested in Supreme Court under Article 136 is very wide, discretionary and it is in the nature of special residuary powers. Under this Article the Supreme Court, without following the usual procedure of filing appeal in the High Court etc., can entertain and decide the matter but at this stage the Court does not allow the appellant to raise any new plea for the first time.
Supreme Court of India in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat on 24 May, 1983 held that a concurrent finding of fact as recorded by the Sessions Court and affirmed by the High Court, cannot be reopened in an appeal by Special Leave unless it is established-
(1) That the finding is based on no evidence or
(2) That the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or
(3) The finding is based and built on inadmissible evidence, which evidence if excluded from vision, would negate the prosecution case or substantially discredit or impair it or
(4) Some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded, or wrongly discarded. The present is not a case of such a nature.
A person can approach Supreme Court under Article 136 in exceptional cases. In Jyotendra Singhji v. S. T. tripathi AIR 1993 SC 1991, the Court said that a party cannot gain advantage by approaching the Supreme Court directly under Article 136 instead of approaching the High Court under Article 226.
Supreme Court of India in Pritam Singh v. The State on 5 May, 1950 observed that on a careful examination of Article 136, it seems clear that the wide discretionary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases.
The provisions relating to Special Leave Petition are contained in Order XXI of the Supreme Court Rules, 1966, framed under Article 145 of the Constitution.
Q.4. Describe the status of Administrative Tribunals.
[Assam Judicial Service (Grade-III) Written Examination, 2013]
Ans. To provide in-expensive and speedy relief to Central Government Employees in respect of their grievances related to service matters, the administrative tribunals have been established.
The administrative tribunals have been given constitutional status by adding Part XIV-A (Articles 323-A and 323-B) by the Constitution (Forty-second Amendment) Act, 1976. Article 323 A provides for the establishment of administrative tribunals for adjudication or trial of disputes and complaints with respect to recruitment and condition of service of persons appointed to public services.
Article 323B makes provision for the creation of tribunals for adjudication or trial of disputes, complaints or offences connected with tax, foreign exchange, industrial and labour disputes, land reforms, ceiling on urban property, elections to Parliament and State Legislatures, etc.
The Indian Parliament has exclusive power to enact a law under article 323A while both Parliament and State Legislatures can make laws on matters of article 323B subject to their legislative competence.
In general sense, the ‘tribunals’ are not courts of normal jurisdiction but they have very specific and predefined work area. The administrative tribunals are not original invention of the Indian Political System.
They are well established in other democratic countries of Europe as well as United States of America, particularly France. Lord Greene said administrative tribunals perform hybrid functions.
Exercising the powers conferred by the Article 323A of the Constitution, Indian Parliament passed a law to establish the administrative tribunals in India. The Administrative Tribunals Act, 1985 provides for adjudication or trial of disputes and complaints with respect to recruitment and conditions of service of public servants.
Q.5. Explain the features of Local Self Government as envisaged under the Constitution of India?
[Assam Judicial Service (Grade-III) Written Examination, 2012]
Ans. The concept of local self-government is in furtherance of Article 40 of the Constitution which says that the State shall take steps to organize Village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.
Moreover, this concept is not limited with only villages rather to cities also. In this respect, it is important to note that the 73rd and 74th Constitutional Amendments were passed by Parliament in December, 1992.
Through these amendments local self-governance was introduced in rural and urban India. The Acts came into force as the Constitution (73rd Amendment) Act, 1992 on April 24, 1993 and the Constitution (74th Amendment) Act, 1992 on June 1, 1993.
These amendments added two new parts to the Constitution, namely, 73rd Amendment added Part IX titled “The Panchayats” and 74th Amendment added Part IXA titled “The Municipalities”. The Local bodies-‘Panchayats’ and ‘Municipalities’ came under Part IX and IXA of the Constitution after 43 years of India becoming a republic.
Article 3 of European Charter of Local Self-Government-Strasbourg 15 X 1985 says:
1. Local Self Government denotes the right and the ability of local authorities, within the limits of law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.
2. This right shall be exercised by Councils or assemblies composed of members freely elected by secret ballot on the basis of direct equal universal suffrage, and which may possess executive organs responsible to them This provision shall in no way affect recourse to assemblies of citizens referendums or any other form of direct citizen participation where it is permitted by statute.
Andhra High Court in Ranga Reddy District Sarpanches v. Government of A.P., 2004 (2) ALD 1 said that an overview of local self-Government may set the perspective. The statutory pattern of municipal Government is substantially the same all over the country.
The relevant legislation fabricates these local bodies, invests them with corporate personality, breathes life into them, charges them with welfare functions, some obligatory, some optional, and regulates their composition through elected representatives.
It provides for their finances by fees and taxes and heavily controls their self-Government status through a department of the State Government in various ways, including direction and correction, sanction and supersession. Consequentially the law clothes the State Government with considerable powers over almost every aspect of municipal working.
Local self-Government, realistically speaking, is a simulacrum of Article 40 and democratically speaking a half-hearted euphemism; for in substance, these elected species are talking phantoms with a hierarchy of state officials hobbling their locomotion.
Their exercises are strictly overseen by the State Government, their resources are precariously dependent on the grace of the latter, and their functions are fulfilled through a Chief Executive appointed by the State Government.
Floor-level democracy in India is a devalued rupee, Article 40 and the evocative opening words of the Constitution notwithstanding. Grassroots never sprout until decentralization becomes a fighting creed, not a pious chant.
Panchayats and Municipalities are the institutions of self-government.
Salient Features of the local self-government are as under:
i. Basic units of democratic system-Gram Sabhas (villages) and Ward Committees (Municipalities) comprising all the adult members registered as voters.
ii. Three-tier system of panchayats at village, intermediate block/taluk/mandal and district levels except in States with population is below 20 lakhs (Article 243B).
iii. Seats at all levels to be filled by direct elections [Article 243C (2)].
iv. Seats reserved for Scheduled Castes and Scheduled Tribes and chairpersons of the Panchayats at all levels also shall be reserved for SCs and STs in proportion to their population.
v. One-third of the total number of seats to be reserved for women. One third of the seats reserved for SCs and STs also reserved for women.
vi. One-third offices of chairpersons at all levels reserved for women (Article 243D).
vii. Uniform five year term and elections to constitute new bodies to be completed before the expiry of the term. In the event of dissolution, elections compulsorily within six months (Article 243E).
viii. Independent Election Commission in each State for superintendence, direction and control of the electoral rolls (Article 243K).
ix. Panchayats to prepare plans for economic development and social justice in respect of subjects as devolved by law to the various levels of Panchayats including the subjects as illustrated in Eleventh Schedule (Article 243G).
x. 74th Constitution Amendment provides for a District Planning Committee to consolidate the plans prepared by Panchayats and Municipalities (Article 243ZD).
xi. Budgetary allocation from State Governments, share of revenue of certain taxes, collection and retention of the revenue it raises, Central Government programmes and grants, Union Finance Commission grants (Article 243H).
xii. Establish a Finance Commission in each State to determine the principles on the basis of which adequate financial resources would be ensured for panchayats and municipalities (Article 2431).
Further, the Courts are barred from interfering in electoral matters such as the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies. No election to any Panchayat can be called in question except by an election petition as provided under any law made by the Legislature of a State.
Q.6. What are the effects of National Emergency under the Constitution of India?
[Tripura Judicial Service (Grade-III) Written Examination, 2015]
What are the effects of proclamation of Emergency?
[Assam Judicial Service (Grade-III) Written Examination, 2015]
[Manipur Judicial Service (Grade-III) Written Examination, 2014-2015]
Under what circumstances emergency can be declared by the President of India under Article 352 of the Constitution’ of India. Discuss.
[Uttarakhand Higher Judicial Service Mains Examination, 2008]
Ans. Article 352(1) says that “if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the proclamation”.
The words “in respect of the whole of India … in the proclamation” were added by the Constitution (42nd Amendment) Act, 1976 while the words “armed rebellion” were substituted by the Constitution (44th Amendment) Act, 1978 for the words “internal disturbance”.
For the first time a national emergency due to an external aggression was imposed in India in 1962 at time of Chinese aggression, which was revoked in 1968.
The emergency due to an external aggression was imposed in India for the second time in 1971 when Pakistan attacked India. It was revoked in March 1977 after Janta Government came into power and the emergency due to internal disturbance was declared in India on June 26, 1975, on the advice of the former Prime Minister Mrs. Indira Gandhi.
This emergency was revoked in March, 1977, after the defeat of the Congress Party in the Sixth General Election. Indeed no such emergency has been proclaimed after 1977.
The proclamation of national emergency under Article 352 of the Indian Constitution has various effects on the rights of individuals and the autonomy of the states as under-
Federal to Unitary Structure:
During emergency, the federal structure is converted into unitary structure in which the Union comes into leading role to play. In it, the executive powers of the Union extend to giving directions to State as to the manner in which the executive power of the State is to be carried on. Article 353 provides that the executive power of the Union to give directions to make laws shall extend to any State other than the State where emergency is in force, if the security of India or a part thereof is threatened by activities in or in relation to any part of the territory of India.
Article 353 (b) says that while the proclamation of emergency is in operation, the Parliament is empowered to make laws with respect to the matters in the State List. The distribution of legislative power is thus fundamentally changed during emergency. The law-making power of the State is suspended during the emergency.
Article 354 says that the President may, while a proclamation of emergency is in operation, by the order, alter the financial arrangement between the State and the Union as provided in Articles 268 to 279.
Extension of Life of Lok Sabha:
While a proclamation of emergency is in operation, Parliament may by law extend the normal life of Lok-Sabha for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.
Suspension of Right to Enforce of Fundamental Rights:
Article 359 empowers the President to suspend the right to enforce fundamental rights guaranteed by Part III of the Constitution. It provides that while the right to move any court for the enforcement of such of the fundamental rights as may be mentioned in the order (except Articles 20 and 21) and all proceedings pending in any court for the enforcement of such rights, shall remain suspended during the period of proclamation is in force or for such shorter period as may be specified in the order.
Suspension of Article 19:
Article 358 of the Indian Constitution provides for suspension of six freedoms guaranteed to the citizens by Article 19 of the Indian Constitution.
Q.7. Write short note on Ignorantia Juris Non Excusat.
[Legal Officer, Reserve Bank of India Examination, 2016]
Ans. Ignorantia Juris Non Excusat, a Latin term, means ignorance of Law is not an excuse. A person who is unaware of a law may not escape liability for violating that law merely because he was unaware of its content. In Swadeshi Cotton Mills Co. Ltd. v. Govt. of U.P.f 1975) 4 SCC 378, the Supreme Court held that “Every individual is deemed to know the law of the land. The courts merely interpret the law and do not make law. Ignorance of law is not an excuse for not taking appropriate steps within limitation.
Madhya Pradesh High Court in Dolatram v. Kishan, 1999 (2) MPLJ 620 held that “ignorantia juris non excusat” is not an inflexible rule when the Court is dealing with the case of a rustic farmer.
Lord Mansfield said it would be hard upon the profession (i.e. legal profession) if the law was so certain that everybody knew it. Eminent jurists have therefore, discarded this fiction and stated that the true rule is not that everyone is presumed to know law but that ignorance of law will not be permitted as an excuse.
The relentless rigour with which this maxim has been generally applied in all criminal proceeding has been justified by well know writers on jurisprudence on three grounds:
(1) Law, in theory, at any rate, is definite and knowable. Hence innocent and inevitable ignorance of law is impossible.
(2) The ground of necessity- if this maxim is relaxed every accused will take the plea that he did not know the law and it will be almost impossible for the prosecution to show affirmatively that he knew the law in question. Hence for the sake of any benefit derivable from a relaxation of this maxim it is not advisable to weaken the administration of justice by making liability dependent on well-nigh inscrutable conditions touching knowledge or means of knowledge of the law.
(3) Criminal law rests on certain moral principles and hence when a person breaks the law though he may be ignorant of the provisions of law he knows very well that he is breaking the rule of right.
(4) Though these grounds are undoubtedly valid and weighty nevertheless modern jurists recognise that they do not constitute an altogether sufficient basis for so stringent and severe rule.
Q.8. What criminal immunities have been granted to children under seven years of age and children above seven and under twelve under IPC?
[Himachal Pradesh Judicial Service Mains Examination, 2016]
Ans. To hold a person criminally liable, his evil intention in committing the offence is required. But, when we talk about children it is assumed that a child does not have an evil mind. In olden days every home was the best child care home but with growth of population and industrialisation children are being neglected by their own parents and come in contact with evil elements in the society.
Many of such children who are charged as criminals are themselves victims of the circumstances prevailing in the society. He is not thought competent to take proper decision. Thus, the children completely lack mens rea in doing any act. The IPC deals with two circumstances where the children’s criminal liability has been mentioned. Sections 82 and 83 of IPC grant immunity to an infant below a particular age from criminal responsibility.
Section 82 totally absolves a child under 7 years of age from criminal responsibility, whereas section 83 grants partial immunity against prosecution and punishment for a child above 7 and under 12 years of age.
82. Act of a Child under Seven Years of Age- Nothing is an offence which is done by a child under seven years of age.
Section 82 gives a complete protection to any act done by a child of less than seven years of age since a child below this age is considered doli incapax in law.
83. Act of a Child above Seven and under twelve of Immature Understanding- nothing is an offence which is done by a child above seven years of age and below twelve years of age who has not attained the sufficient maturity of understanding to judge the nature and consequences of this conduct on that occasion.
Where the accused is the child above 7 years of age and under 12 years, the incapacity to commit an offence only arises when the child has not attained sufficient maturity of understanding to judge the nature consequences of his conduct and such non attainment would have apparently to be specially pleaded and proved, like the incapacity of a person who, at the time of doing an act charged as an offence, was alleged to have been of unsound mind under this section, it has to be shown that the accused is not only under 12 years but has not attained sufficient maturity of understanding.
If no evidence or circumstance is brought to the notice of the court, it will be presumed that the child accused intended to do what he really did. What the section contemplates is that the child should not know the nature and physical consequences of his conduct. The circumstances of a case may disclose such a degree of malice as to justify the maxim militia supplet octatem.
Under Section 83 of the Indian Penal Code is concerned, the Court is required to see whether the person claiming the protection was in a position to understand the nature and quality of his act. Section 83 provides qualified immunity because it presumes that a child above seven and below twelve years has sufficient maturity to commit a crime and the burden is on the defence to prove that he did not possess sufficient.
Patna High Court in Krishna Bhagwan v. State of Bihar, 1991 CriLJ 1283 said that sections 82 and 83 of the Indian Penal Code, which provide that nothing is an offence which is done by child under seven years of age, and that nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion. These provisions, however, were mainly introduced for the reason that unless done with criminal intention, any act or omission, is not an offence.
Q.9. When does a proposal become absolute? Can a proposal be revoked, if so, how?
[Assam Judicial Service (Grade-III) Written Examination, 2011]
Ans. A proposal is absolute when it is accepted as per the will of promisor without varying any terms or conditions of the proposal. Sec. 7 of the Contract Act mentions that in order to convert a proposal into a promise, the acceptance must be absolute and unqualified.
Yes, the proposal can be revoked. Sec. 5 of the Contract Act says that ‘a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards.’ It means before completion of acceptance, the proposal can be revoked.
For Example- A proposes, by a letter sent by post, to sell his house to B. B accepts the proposal by a letter sent by post. A may revoke his proposal at any time before or at the moment when B posts his letter of acceptance, but not afterwards.
Sec. 6 of the Contract Act provides the method of revocation of proposal as:
Revocation how made- A proposal is revoked-
(1) By the communication of notice of revocation by the proposer to the other party
(2) By the lapse of the time prescribed in such proposal for its acceptance, or, if no time is so prescribed, by the lapse of a reasonable time, without communication of the acceptance;
(3) By the failure of the acceptor to fulfill a condition precedent to acceptance or
(4) By the death or insanity of the proposer, if the fact of his death or insanity comes to the knowledge of the acceptor before acceptance.
Q.10. Under a contract A is liable to pay Rs. 1,00,000/- to B. A, B and C agree that thereafter C will pay the debt instead of A. What is its legal effect and what is the principle involved in it?
[Kerala Judicial Service (Mains) Examination, 2012]
Ans. The contract between A, B and C for appropriation of A’s debt is valid. This agreement is based on section 62 of the Indian Contract Act, 1872 which is as under-
62. Effect of novation, rescission, and alteration of contract- If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed.
In Mohan Lai Kukreja v. Shri Sunder Kukreja, 2008 (1) ARBLR 17 Delhi, Delhi High Court said that the essence of novation lies in the intention of the parties to supersede the old contract by a new one. One of the questions that often arise is whether an arbitration clause can operate even after the original contract in which the same was contained, has been superseded or where any such contract is found to be void ab initio.
Q.11. A professional singer took advance of Rs. 50,000 to sing at Christmas eve party. A day prior to Christmas because of extreme cold weather A caught a bad cold and had soar throat because of which she could not sing on the Christmas eve. She is sued for the refund of the advance as also for damages for failure to perform the contract. Decide with reasons.
[Bihar District Judge (Entry Level) Competitive Mains Examination, 2013]
Ans. She is not liable to pay compensation as it is the case of subsequent impossibility provided under Para II of section 56 of the Contract Act, 1872 but liable to refund the advance under the provisions of section 65 of the Contract Act which provides that when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it.
Q.12. The employee of the Telecommunication Department opened a manhole in the street for repairs and in the evening left the manhole covered by a tent unattended. They placed warning lamps around the tent. Z, a boy of eight years, along with his uncle took a lamp and entered the manhole. As they emerged, the lamp was knocked into the hole and a violent explosion took place, with flames shooting thirty feet into the air. Z was knocked back into the hole where the sustained serious burns. His uncle had a serious hurt attack due to the sound of explosion of the lamp. Both Z and his uncle filed a suit against the Telecommunication Department for the damages. How will you decide? Refer to decided cases.
[Assam Judicial Service (Grade-III) Main Examination, 2011]
Ans. The Telecommunication Department is not liable for the injuries caused to Z and his uncle as here the general defence of volenti non fit injuria is applicable. The Telecommunication Department took every possible step but Z and his uncle entered in manhole with their free will knowing the risk also so they cannot get success against Telecommunication Department.
Q.13 Discuss minor’s liability in torts.
[Kerala Judicial Test (Higher) Examination, 2017]
Write note on defence of minority in an action for torts.
[Assam Judicial Service (Grade-III) Written Examination, 2013]
Ans. In general, minority is not defence in torts. As to tortious liability of minors, they are liable as adult persons except where liability depends on some special mental element like malice or fraud, or where reasonable conduct is involved. Salmond states there are no rules of exemptions such as exist in other branches of law e.g. ‘criminal law.
He observed- Thus a child of any age may be sued for trespass or conversion, and will be held liable in damages just as if he were an adult. The youth of the defendant is not however in all cases wholly irrelevant. For it may be evidence of the absence of the particular mental stale which is an essential element in the kind of tort in question.
Thus, if an action is based on malice or on some special intent, the fact that the defendant is extremely young is relevant as tending to disprove the existence of any such malice or intent. Similarly, it would seem that in order to make a child liable for negligence, it must be proved that he failed to show the amount of care reasonably to be expected from a child of that age.
It is not enough that an adult would have been guilty of negligence had he acted in the same way in the same circumstances. This, indeed, seems never to have been decided, but it would seem implied in the decisions on the contributory negligence of children. In general the principle appears to be that a minor who is incapable of forming a culpable intention or of realising the probable consequences of his conduct is relieved from liability in those cases in which fault is essential to liability, but that wherever a liability is imposed irrespective of fault he is fully liable as a normal adult.
In Walmsley v. Humenick, (1954) 2 D.L.R. 232 the Supreme Court of British Columbia held that the defendant, a child of five years, could not be held liable for negligence because he had not reached that stage of mental development where it could be said that he should be found legally responsible for his negligent acts.
In Ballet v. Mingay, (1943) K.B. 281 a minor hired a microphone and an amplifier and improperly passed it to a friend. The infant was held liable for detinue.
Q.14. Write critical note on Principle of absolute liability under the Law of Torts.
[Haryana Civil Service Main Examination, 2014]
Write short note on absolute liability.
[Assam Judicial Service (Grade-III) Written Examination, 2015]
Write note on rule of absolute liability.
[Assam Judicial Service (Grade-III) Written Examination, 2013]
Discuss “Rule of Absolute Liability” as laid by the Supreme Court of India in M. C. Mehta v. Union of India, AIR 1987SC 1086.
[Manipur Judicial Service (Grade-III) Written Examination, 2017]
Ans. As discussed above the rule in Rylands v. Fletcher was evolved in the year 1866 and it provides that a person who for his own purposes being on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he falls to do so, is prima facie liable for the damage which is the natural consequence of its escape.
The liability under this rule is strict and it is no defence that the thing escaped without that person’s willful act, default or neglect or even that he had no knowledge of its existence. This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused.
Of course, this rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority.
The rule of absolute liability has been evolved by Hon’ble Supreme Court in the case of M.C. Mehta v. Union of India, AIR 1987SC 1086 (Oleum Gas Leak Case). In this case, Shriram Food and Fertilizers Industry was producing caustic and chlorine. On December 4th and 6th 1985, a major leakage of oleum gas took place from one of the units of Shriram Food and Fertilizers Limited in the heart of the capital city of Delhi which resulted in the death of several persons.
The leakage was caused by a series of mechanical and human errors. This matter was brought as a PIL before Supreme Court. The Court observed that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken.
The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.
Further, the court said that in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry out part of the developmental programme.
This rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure.
Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static.
New principles have to be laid down which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country.
This rule is also known as no-fault liability as the exceptions available in case of strict liability do not apply here.
The steps taken by judiciary has been furthered by Indian Legislature by enacting the Public Liability Insurance Act, 1991 wherein the stress is on providing immediate relief to the persons affected by accident occurring while handling any hazardous substances for matters connected with the incident.
It has the purpose of providing public liability insurance. It provides that every owner who works with hazardous substances and hires employees to control those dangerous things, shall have policies and insurances where he will be insured against liability to give relief in case of death or injury to a person or damage to property arising from the accident caused while carrying on the hazardous activities.