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UPSC Mains Answer PYQ 2023: Law Paper 2 (Section- B) | Law Optional Notes for UPSC PDF Download

Section - B

Q5: Answer the following in about 150 words each. Support your answer with relevant legal provisions and judicial pronouncements. (10x5=50)
(a) “The law of contract is not the whole law of agreements, nor is it the whole law of obligations. It is the law of those agreements which create obligations, and those obligations which have their source in agreement” — Salmond. Critically examine this statement.      (10 Marks)

Introduction: Salmond's statement emphasizes that the law of contract governs agreements that create legally enforceable obligations. It distinguishes contracts from other types of agreements.

Critical Examination:

  • Agreements vs. Contracts:

    • Agreements: Can be informal and may not create legal obligations (e.g., social agreements).
    • Contracts: Formally binding, leading to legal consequences in case of breach.
  • Obligations and Source:

    • Source of Obligations: Contracts create obligations through mutual consent and understanding between parties.
    • Non-Contractual Obligations: Some obligations (e.g., torts, restitution) do not arise from agreements but have their own legal basis.
  • Limitations of Contract Law:

    • Incomplete Coverage: Some obligations (e.g., statutory duties) are not contractual but are still legally enforceable.
    • Other Sources of Obligations: Obligations can also arise from statutes, customs, or equity.

Example: A social agreement to meet for coffee is not a contract, as it lacks the intention to create legal relations.

Salmond's statement succinctly captures the scope of contract law, emphasizing that it pertains to agreements creating legally enforceable obligations, but acknowledges that other sources can also give rise to obligations.

(b) “At the suit of a partner, the court may dissolve a firm on certain grounds specified in the Indian Partnership Act, 1932. The right of a partner to ask for dissolution on any of the grounds mentioned in the Act cannot be excluded by any agreement to the contrary.” Explain.       (10 Marks)

The Indian Partnership Act, 1932, provides for the dissolution of a partnership firm on various grounds.

Right to Ask for Dissolution:

  • Partner's Right: A partner has the right to seek dissolution based on the grounds specified in the Act.
  • Non-Excludable Right: Any agreement among partners that attempts to exclude this right is void.

Grounds for Dissolution (Section 44):

  • On the Suit of a Partner: A partner can seek dissolution in the following cases:
    • Insanity of a partner.
    • Perpetual incapacity.
    • Conduct prejudicial to the business.
    • Breach of partnership agreement.

Example: If Partner A consistently mismanages funds and conducts business in a manner detrimental to the firm, Partner B has the right to seek dissolution.

The Indian Partnership Act, 1932, grants partners the right to seek dissolution on specified grounds, and this right cannot be negated by any agreement to the contrary.

(c) “The parties cannot appeal against an arbitral award as to its merits. But, this does not mean that there is no check on the Arbitrator’s conduct. Awards may also be challenged.” Critically examine the above statement.       (10 Marks)

Introduction: An arbitral award is a final decision rendered by an arbitrator(s). While parties cannot appeal on merits, there are mechanisms to challenge awards.

Challenging Arbitral Awards:

  • Limited Grounds (Section 34 of the Arbitration and Conciliation Act, 1996): Awards can be challenged on the following grounds:

    • Procedural irregularities.
    • Lack of jurisdiction.
    • Public policy violation.
  • Judicial Oversight: Courts can set aside awards if they find them to be against public policy or if there are procedural flaws.

Example: If an arbitrator fails to consider crucial evidence, it may be a ground for challenging the award.

While parties cannot appeal on the merits of an arbitral award, there are provisions for challenging awards based on specific grounds, ensuring a check on the arbitrator's conduct.

(d) “In India, there are different types of Intellectual Property rights, which are protected under different laws.” Explain.       (10 Marks)

Introduction: India recognizes various forms of intellectual property rights (IPR) to protect creations of the mind.

Types of IPR:

  • Patents (Patents Act, 1970): Protects inventions and new technological processes.
  • Copyright (Copyright Act, 1957): Protects original literary, artistic, musical, and dramatic works.
  • Trademarks (Trade Marks Act, 1999): Protects symbols, names, and marks used to distinguish goods/services.
  • Designs (Designs Act, 2000): Protects the visual design of objects.
  • Geographical Indications (Geographical Indications of Goods Act, 1999): Protects goods with a specific geographical origin.

Example: The patent for a new pharmaceutical formulation protects the invention from being replicated without the inventor's consent.

Conclusion: India provides legal frameworks for the protection of various forms of intellectual property, fostering innovation and creativity.

(e) What kind of cases are heard by the ‘National-Green Tribunal’ ? How is it different from the Central Pollution Control Board (CPCB) ?       (10 Marks)

Both institutions play crucial roles in environmental protection, but they have distinct functions and jurisdictions.

National Green Tribunal (NGT):

  • Jurisdiction: Hears cases related to environmental protection and conservation.
  • Powers: Adjudicates civil cases and provides relief for environmental damage.
  • Composition: Comprises judicial and expert members.

Central Pollution Control Board (CPCB):

  • Regulatory Authority: Regulates and monitors pollution levels in different industries.
  • Enforcement: Implements environmental laws, standards, and regulations.
  • Advisory Role: Advises the government on pollution control measures.


UPSC Mains Answer PYQ 2023: Law Paper 2 (Section- B) | Law Optional Notes for UPSC

Example: If a company is found violating environmental norms, the NGT can hear a case against it, while the CPCB can take regulatory action.

The NGT and CPCB serve complementary roles in environmental governance, with the NGT acting as an adjudicative body and the CPCB as a regulatory authority. Their distinct functions contribute to comprehensive environmental protection efforts in India.

(a) “The Constitutional courts through their judicial activism have made substantial contribution in protecting women against exploitation, using Public Interest Litigation as a tool for securing their Constitutional rights.” Explain with leading case laws.        (20 Marks)
Constitutional courts in India, such as the Supreme Court and High Courts, have played a pivotal role in protecting women against exploitation through judicial activism, often employing Public Interest Litigation (PIL) as a tool to secure their constitutional rights.

Role of Judicial Activism:
1. Vishakha v. State of Rajasthan (1997):

  • Background: The case addressed sexual harassment at the workplace.
  • Judicial Activism: The Supreme Court laid down guidelines (Vishakha Guidelines) to protect women from sexual harassment at workplaces until specific legislation was enacted.

2. Shayara Bano v. Union of India (2017):

  • Background: This case dealt with the practice of instant triple talaq among Muslims.
  • Judicial Activism: The Supreme Court declared instant triple talaq unconstitutional, emphasizing gender justice and equality.

3. Rajesh Sharma v. State of U.P. (2017):

  • Background: This case addressed misuse of Section 498A of the Indian Penal Code (cruelty by husband/relatives).
  • Judicial Activism: The Supreme Court issued guidelines to prevent the immediate arrest of accused persons in such cases, emphasizing the need to protect innocent individuals from false allegations.

Use of PIL for Women's Rights:

1. Vishakha Guidelines: The case was initiated through a PIL filed by an NGO, demonstrating how PILs can be used as an effective tool to highlight and address issues related to women's rights.

2. Gaurav Jain v. Union of India (1995):

  • Background: A PIL addressed the issue of sexual harassment of female employees in government offices.
  • Judicial Activism: The Supreme Court directed the government to implement measures for preventing sexual harassment at workplaces.

The Constitutional courts, through their proactive approach and use of PILs, have significantly contributed to safeguarding women's rights in India. Landmark cases have not only provided legal remedies but also set important precedents for gender justice and equality.

(b) “A minor’s contract being void, ordinarily it should be wholly devoid of all effects. If there is no contract, there should, indeed, be no contractual obligation on either side.” Explain with case laws.        (15 Marks)

A minor's contract is considered void ab initio (from the beginning) due to the minor's incapacity to contract. This means it is treated as if it never existed.

Voidness of a Minor's Contract:
1. Mohori Bibee v. Dharmodas Ghose (1903):

  • Background: The case involved a minor mortgaging his property.
  • Judicial Decision: The Privy Council held the contract void, emphasizing that a minor's contract is entirely void, not voidable.

No Contract, No Obligation:

  • Since a minor's contract is void, neither party can enforce any contractual obligations arising from it.
  • Parties cannot be compelled to perform their promises, nor can they seek damages for non-performance.

Example: If a minor purchases a car on credit, they cannot be held liable for the payment, and the seller cannot force them to pay.

Exception: Necessaries:

  • A minor is liable for necessaries, which are goods or services essential for their support and well-being.
  • The minor must pay a reasonable price for these necessaries.

A minor's contract is entirely devoid of legal effects, and no contractual obligations arise from it. This principle, established through cases like Mohori Bibee v. Dharmodas Ghose, ensures that minors are protected from entering into contracts that they may not fully comprehend.

(c) “A ‘bearer instrument’ is transferable by simple delivery. An ‘instrument payable to order’ can be transferred by endorsement and delivery.” Explain.        (15 Marks)

In negotiable instruments, the mode of transfer depends on whether the instrument is a bearer instrument or payable to order.

Bearer Instrument:

  • Definition: A bearer instrument is payable to the person possessing it, i.e., by simple delivery.
  • Example: A banknote is a classic example of a bearer instrument.

Instrument Payable to Order:

  • Definition: An instrument payable to a specific person or their order, which can be transferred by endorsement and delivery.
  • Example: A check payable to "A" or "A's order" can be transferred by endorsing and delivering it to another person.

UPSC Mains Answer PYQ 2023: Law Paper 2 (Section- B) | Law Optional Notes for UPSC

Example: If "A" endorses a check payable to their order in favor of "B" and delivers it, "B" can further endorse and deliver it to "C."

Understanding the distinction between bearer instruments and instruments payable to order is crucial in negotiable instruments law, as it determines the method of transfer and the payee's rights.

(a) “ ‘Standard-contracts’ contain a large number of terms and conditions in ‘fine print’ which restrict or often exclude liability under the contracts. The individuals can hardly bargain with the massive organisation.” Explain the modes of protection which have been evolved by the courts.        (20 Marks)

Standard contracts, often presented in fine print, can contain clauses that limit or exclude liability for one party. Courts have evolved various modes of protection for individuals in such situations where bargaining power is skewed.

Modes of Protection:
1. Unconscionability Doctrine:

  • Definition: Courts can declare a contract unconscionable if it is extremely one-sided and oppressive.
  • Example: In Lloyds Bank Ltd v. Bundy (1975), the House of Lords held a clause in a mortgage contract unconscionable and unenforceable.

2. Doctrine of Fundamental Breach:

  • Definition: A fundamental breach of contract may render the entire contract unenforceable.
  • Example: In Hong Kong Fir Shipping Co. Ltd v. Kawasaki Kisen Kaisha Ltd (1962), a ship charter was held frustrated due to continuous breakdowns, allowing the charterer to terminate.

3. Statutory Protections:

  • Consumer Protection Laws, such as the Consumer Protection Act, 2019, provide remedies against unfair contract terms and practices.

4. Implied Terms of Good Faith and Fair Dealing:

  • Courts may imply a duty of good faith and fair dealing in contracts, which may limit the application of unfair terms.

Example: In the case of Unfair Terms in Consumer Contracts Regulations 1999 (UK), certain terms in consumer contracts were deemed unfair and hence unenforceable.

Courts have developed various legal doctrines and statutory provisions to safeguard individuals from unfair and oppressive terms in standard contracts.

(b) Describe the constitutional roots o f ‘Right to Information’ in India. Refer to decided case laws.        (15 Marks)

 The Right to Information (RTI) is an integral part of the right to freedom of speech and expression under the Constitution of India.

Constitutional Basis:
1. Article 19(1)(a):

  • Right Guaranteed: "All citizens shall have the right to freedom of speech and expression."
  • Relevance: RTI is an essential tool for exercising freedom of speech and expression.

2. Article 21:

  • Right Guaranteed: "No person shall be deprived of his life or personal liberty except according to procedure established by law."
  • Relevance: Access to information is crucial for individuals to make informed decisions about their lives.

Case Laws:
1. State of U.P. v. Raj Narain (1975):

  • Significance: The case emphasized that citizens have the right to know about the functioning of government agencies.

2. Dinesh Trivedi v. Union of India (1997):

  • Significance: The Supreme Court held that right to information is implicit in the right to freedom of speech and expression.

The Right to Information is firmly rooted in the constitutional framework of India, primarily in Articles 19(1)(a) and 21, and has been reinforced through landmark judgments.

(c) “The doctrine of ‘Undisclosed Principal’ comes into play when the agent neither disclosed the existence of his principal nor his representative character.” In such cases discuss the rights and liabilities of the Principals, the agent and the third parties.        (15 Marks)

The doctrine of undisclosed principal arises when an agent does not disclose the existence of their principal or their representative capacity.

Rights and Liabilities:
1. Rights of the Undisclosed Principal:

  • The undisclosed principal can enforce the contract made by the agent on their behalf.
  • The third party is bound to perform their obligations to the undisclosed principal upon discovering their existence.

2. Liabilities of the Agent:

  • The agent remains personally liable to the third party until the undisclosed principal intervenes.
  • If the undisclosed principal is disclosed, the agent is discharged from liability.

3. Rights of the Third Parties:

  • Once the undisclosed principal is revealed, the third party can choose to enforce the contract against either the agent or the principal.

Example: A hires B to purchase a painting from C without revealing A's identity. If B pays C, A can later enforce the contract against C.

The doctrine of undisclosed principal ensures that the undisclosed principal can step in and enforce the contract made by the agent, while the agent remains personally liable until disclosure. Third parties have rights to enforce the contract against either the agent or the principal once the principal's existence is revealed.

(a) Under what circumstances, can an intermediary be held liable for third party-content hosted by them ? Explain the liability of intermediaries in the light of the relevant legal provisions in IT Act and other contemporary developments.        (20 Marks)

Intermediaries, such as social media platforms and online marketplaces, play a crucial role in facilitating online interactions. However, they can potentially be held liable for content posted by third parties under certain circumstances.

Circumstances for Liability:
1. Failure to Comply with Due Diligence Requirements (Section 79 IT Act):

  • Section 79(1): Provides a safe harbor to intermediaries if they follow due diligence guidelines.
  • Conditions for Immunity (Section 79(2)(c)): Intermediary must not initiate or modify information in transmission.

2. Actual Knowledge or Being Notified (Section 79(3)(a)):

  • Intermediaries lose immunity if they have actual knowledge of unlawful content or are notified by an affected party.

3. Non-Compliance with Government Orders (Section 79(3)(b)):

  • Intermediaries must act on government orders to remove or disable access to certain content.

Contemporary Developments:
1. Intermediary Guidelines and Digital Media Ethics Code Rules, 2021:

  • Issued under Section 79 of the IT Act, these rules provide specific guidelines for intermediaries, including obligations related to content moderation and compliance.

2. Judicial Interpretation:

  • Courts have played a vital role in defining the liability of intermediaries, often balancing free speech and the need to combat unlawful content.

Example: In the case of Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A of the IT Act, which allowed for the arrest of individuals for online content, reaffirming the importance of free expression online.

Intermediaries are protected under the IT Act if they follow due diligence guidelines, but they can be held liable if they fail to comply with specific conditions, such as removal of unlawful content upon notification.

(b) ‘Media trials entail the possibility of subverting administration of justice.’ In the light of this statement, analyse the report of Law Commission of India on Media Trial.        (15 Marks)

Media trials refer to the influence of media coverage on the public perception of a case, which can potentially affect the administration of justice.

Law Commission of India's Report on Media Trials:
1. Recommendations:

  • Balanced Reporting: The report emphasizes the importance of balanced and fair reporting to avoid prejudicing the trial process.
  • Restrictions on Reporting: It suggests guidelines for media to refrain from speculative or sensational reporting.
  • Post-Verdict Reporting: It highlights the need for responsible reporting even after a verdict is reached.

2. Concerns Addressed:

  • Subversion of Justice: The report acknowledges that excessive or biased media coverage can potentially influence public opinion and jeopardize fair trials.
  • Presumption of Innocence: Media trials can erode the presumption of innocence until proven guilty.

Case Study: In the case of Zahira Habibullah Sheikh v. State of Gujarat (2006), the Supreme Court observed that media reporting had influenced witnesses, leading to miscarriage of justice.

The Law Commission's report on media trials provides important recommendations to ensure that media reporting does not undermine the administration of justice, safeguarding the fairness of the trial process.

(c) “Though risk and property generally go together, the two are not inseparable. Sometimes risk may be in one party and property in another.” Discuss the law relating to ‘passing off risk’ under the Sale of Goods Act, 1930.        (15 Marks)

The Sale of Goods Act, 1930, governs the transfer of property and risk in a contract for the sale of goods.

Passing off Risk:
1. General Rule (Section 26):

  • Unless otherwise agreed, the risk in specific goods passes to the buyer when the property in the goods is transferred to the buyer.

2. Exceptions:

  • Sale on Approval or Sale or Return: Risk passes only when the buyer signifies acceptance or retains the goods beyond the agreed time.
  • Goods in a Deliverable State: If goods are sold while in a deliverable state, risk passes to the buyer immediately.

Example: A sells a painting to B, but the delivery is delayed due to unforeseen circumstances. If the painting is damaged during the delay, the risk remains with A.

While risk and property usually go together in a contract for the sale of goods, the Sale of Goods Act provides exceptions where risk and property may not necessarily align, ensuring fairness and protection for both parties.

The document UPSC Mains Answer PYQ 2023: Law Paper 2 (Section- B) | Law Optional Notes for UPSC is a part of the UPSC Course Law Optional Notes for UPSC.
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