LAW

Legal Reasoning

LeR 7 Session Objectives

Passages based on Legal Maxims and

Passage Based - 1
Constitution

Passage 1
Article 19(l)(a) guarantees to all citizens the right to freedom of speech and expression. It means the right
to express one’s views and opinions at any issue through any medium like by word of mouth, writing,
printing, pictures or any other mode. Thus, it includes the freedom of communication and the right to propagate
or publish opinion. However, this right is not absolute and is subject to reasonable restrictions imposed under
Article 19(2).

In 2002, there were adverse comments widely reported in the print media in Karnataka regarding the
private behavior of some sitting judges of the High Court. The High Court suo moto commenced contempt
proceedings against several publications for scandalizing the Court and lowering its authority. The matter
reached the Supreme Court and an agonized Chief Justice Khare while criticizing the media for not disclosing
their sources stated that “I will reward the media if they come out with the truth” ... “I personally believe
that truth should be a defense in a contempt case.” Broadly, criminal contempt means either scandalizing the
Court or prejudicing a fair trial or interference with the administration of justice.”In the “Mid-day” case, a
bench of the Delhi High Court without considering the defense of truth has imposed a severe sentence of
four months imprisonment on the media for scandalizing the Court.

Indeed, the contempt power finds express mention in the Constitution. Article 19(2) permits the government
to impose reasonable restrictions upon the freedom of speech and expression “… in relation to contempt of
court.” The legislation governing contempt powers is the 1971 Contempt of Courts Act. Contempt as a civil
offence involves willful disobedience of a court order. Contempt as a criminal offence, on the other hand,
involves either an act or expression (spoken, written or otherwise visible) that does one of three things:
scandalises, or tends to scandalize, or lowers, or tends to lower, the authority of any court; prejudices or
interferes (or tends to interfere) with judicial proceedings; or otherwise obstructs, or tends to obstruct, the
administration of justice. As we can see, contempt can – broadly – take two forms: first, obstructing the
proceedings of the Court by acts such as disobeying an order, holding up a hearing through absence or
physical/verbal disturbance etc. This is straightforward enough. More problematically, however, contempt
also covers instances of what we may call “pure speech”: words or other forms of expression about the
Court that are punished for no other reason but their content. In particular, “scandalising the Court” seems
to be particularly vague and formless in its scope and ambit.

[Extracted with edits and revisions, Free Speech and Contempt of Court, Gaurav Bhatia, [Link]
internet-governance/blog/free-speech-and-contempt-of-court-2013-i-overview]

1.1. As per the passage, can it be inferred that Article 19 of the Constitution of India also covers freedom
of press and media?
A. Yes, as from the above passage, it is clear that freedom of press is implicit in freedom of speech and
expression.
B. Yes, since 19(2) that imposes reasonable restrictions are also applicable to the press as witnessed in
the passage.
C. No, as it is not explicitly stated that freedom of press can also be covered under Article 19 of the
Constitution of India.
D. Both (A) and (B).

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1.2. What is the correct meaning of Contempt of Court as can be inferred from the passage laid above?
I. Criminal Contempt means defaming the court and passing scandalous comments against the judiciary
in the Media.
II. Contempt of Court means curtailing the freedom of the press and media
III. Civil contempt means wilful disobedience of any order of the court.
A. I and II B. II and III C. I and III D. I, II and III

1.3. The statute governing contempt of Court is governed by which of the following?
I. Article 19(2) of the Constitution of India
II. The Contempt of Courts Act
III. Code of Criminal Procedure
A. I and II B. II and III C. I and III D. I, II and III

1.4. If a writer in his/her book accuses the Supreme Court of “stifling dissent”, can they be held for contempt
of court?
A. Yes, as contempt of court is against defaming the judiciary and this remark can be considered to be
scandalous.
B. No, as the writer can take the defence that it is a violation of the freedom of speech and expression.
C. No, as the statement is general and not against any specific judge.
D. Cannot be determined.

1.5. Can a legislator be hauled up for contempt for calling judges “idiots” in a public speech?
A. Yes, as contempt of court is against defaming the judiciary and this remark can be considered to be
scandalous.
B. No, Constitution provides the fundamental right of free speech and expression.
C. No, as a legislator is covered by legislative privilege.
D. No, as the statement is only about judges and not about the judiciary in general.

Passage 2
Amicus curiae, or friend of the court, refers to someone, not a party to a case, who volunteers to offer
information on a point of law or some other aspect of the case to assist the court in deciding a matter before
it. The information may be a legal opinion in the form of a brief, testimony that has not been solicited by any
of the parties, or a learned treatise on a matter that bears on the case. The decision whether to admit the
information lies with the discretion of the court.

The role of an amicus is often confused with that of an intervener who has a direct interest in the outcome
of the lawsuit. The role of an amicus curiae is to help the court by expounding the law impartially, or if one
of the parties were unrepresented, by advancing the legal argument on his behalf. The situation most often
noted in the press is when an advocacy group files a brief in a case before an appellate court to which it is
not a litigant. Appellant cases are normally limited to the factual record and arguments coming from the
lower court case under appeal; attorneys focus on the facts and arguments most favorable to their clients.
Where a case may have broader implications, amicus curiae briefs are a way to introduce those concerns,
so that the possibly broad legal effects of court decisions will not depend solely on the parties directly
involved in the case.

Amici curiae often present an academic perspective on the case. For example, if the law gives deference to
a history of legislation of a certain topic, a historian may choose to evaluate the claim using their expertise.
An economist, statistician, or sociologist may choose to do the same. The court has broad discretion to grant
or to deny permission to act as amicus curiae. Generally, cases that are very controversial will attract a
number of such briefs.

In India, if a petition is received from the jail or in any other criminal matter if the accused is unrepresented,
then, an Advocate is appointed as amicus curiae by the Court to defend and argue the case of the accused.
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In civil matters also, the Court can appoint an Advocate as amicus curiae if it thinks it is necessary in case
of an unrepresented party; the Court can also appoint amicus curiae in any matter of general public importance
or in which the interest of the public at large is involved.

2.1. Amicus Curiae generally provides information on all the following except
A. expertise on any matter concerning the case
B. legal aspect relating to the case
C. relevant information being party to the case
D. testimony that can have bearing on the case.

2.2. Why are amicus curiae briefs relevant in appellate cases?

A. They can provide legal arguments on behalf of unrepresented parties.
B. They can express concerns that have broad legal implications of the case in an unbiased manner
C. They provide academic perspective on a case.
D. They can provide expert opinions which have a bearing on the case.

2.3. Kasak is an accused in a criminal case and he does not have anyone representing him. In order for the
case to be tried in the court,
A. He will have to appoint a lawyer to represent him, else he will be convicted.
B. He will have no option but to represent himself.
C. The court will appoint an amicus curiae to represent him.
D. Trial cannot be conducted because there is nobody to represent him.

2.4. Amicus curiae can be appointed in

A. Civil cases B. Criminal cases
C. Cases involving public policy D. All the above

Passage 3
Certiorari is a court process to seek judicial review of a decision of a lower court or administrative agency.
A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. This writ is
often issued by a superior court to the lower court directing it not to proceed with a case which does not fall
under its jurisdiction.

The Supreme Court, in a judgment, has explained the scope of Jurisdiction of High Courts to issue a writ of
Certiorari. The bench was considering an appeal against the Orissa High Court judgment which had dismissed
the Writ Application filed under Articles 226 and 227 of the Constitution of India challenging the Award
passed by the Labour Court, Bhubaneswar.

The jurisdiction to issue writ of certiorari is supervisory and not appellate. The Writ of Certiorari is intended
to correct jurisdictional excesses. A writ of prohibition would issue when a Tribunal or authority has not yet
concluded its proceedings. Once a decision is rendered by a body amenable to Certiorari jurisdiction, certiorari
could be issued when a jurisdictional error is clearly established. The jurisdictional error may be from failure
to observe the limits of its jurisdiction. It may arise from the procedure adopted by the body after validly
assuming jurisdiction. It may act in violation of principles of natural justice.

An error of law which becomes vulnerable to judicial scrutiny by way of Certiorari must also one which is
apparent on the face of the record. As held by this Court in Hari Vishnu Kamath (supra), as to what
constitutes an error apparent on the face of the record, is a matter to be decided by the court on the facts of
each case.

A finding of fact which is not supported by any evidence would be perverse and in fact would constitute an
error of law enabling the writ court to interfere. It is also to be noticed that if the overwhelming weight of the
evidence does not support the finding, it would render the decision amendable to certiorari jurisdiction. This
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would be the same as a finding which is wholly unwarranted by the evidence which is what this Court has
laid down.

In the case of Writ of Certiorari, no doubt, the Court also bears in mind that it is not axiomatic, or that upon
a finding of illegality, a court is bound to interfere. The court may still exercise its discretion and decline
jurisdiction unless there is manifest injustice.

3.1. The High Court has the power to issue a writ of certiorari on the basis of which article of the Constitution?
A. Article 12 B. Article 14 C. Article 32 D. Article 226

3.2. The District Court has tried a case and the judgment resulted in conviction of the accused. The accused
is not happy with the judgment as he feels justice has not been done. What should he do now?
A. File a petition in the High Court for writ of Certiorari
B. File a petition in the High Court for writ of Prohibition
C. File an appeal in the High Court
D. Any of the above.

3.3. The District Court is trying a case and the judgment has been delivered that resulted in a conviction.
However, the Judge was seen to be biased as he was distantly related to the victim in the case. What
is the best option for the convicted person now?
A. File an appeal in the High Court
B. File a petition in the High Court for a writ of Certiorari.
C. File a petition in the High Court for writ of Prohibition
D. File a petition in the High Court for a writ of Habeas Corpus.

3.4. In a writ of Certiorari, if a minor error of law has been identified,

A. the court is bound to interfere.
B. the court is not bound to interfere.
C. the court can ask for the proceedings to be stopped.
D. the court should reverse the judgment.

3.5. Which of the following cases is best suited for a writ of prohibition?
A. A case in a lower court has not followed the principles of natural justice while delivering the judgment.
B. A lower court has awarded judgment without having the relevant jurisdiction.
C. A lower court has not followed the due process of law while delivering judgment.
D. A lower court is trying a case that lies outside its jurisdiction.

3.6. Which of the following statements regarding the writ of Certiorari is true?
I. The court may decline jurisdiction unless there is major injustice.
II. It is a form of judicial scrutiny.
III. Certiorari asks for review of records unlike Prohibition that halts the proceedings.
A. I an II B. II and III C. I and III D. I, II and III

Passage 4
Article 3 of our constitution says that Parliament of India can form new states by separation of a territory
from any state. Article 3 of Indian Constitution addresses the topic of ‘Formation of new States and alteration
of areas, boundaries or names of existing States’. It says; Parliament may by law form a new State by
separation of territory from any State or by uniting two or more States or parts of States or by uniting any
territory to a part of any State. Parliament of India can form new States, alter the area, boundaries or names
of the existing States by a law passed by a simple majority. The bills for the formation of new states or
alteration of the boundaries or names of the existing states shall be introduced in either House of the
parliament only on the recommendation of the President of India. The President of India, before introducing
the Bill in the Parliament, shall refer it to the concerned State legislature for its opinion within a specified
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time limit. If the State Legislature does not give its opinion within the specified time, the limit may be
extended. The bill may be introduced even if the opinion has not come.

The Parliament is not bound to accept or act upon the views of the State Legislature. Once this is done,
Schedule 1 will be changed. For example, when Orissa became Odisha, the entry 10 in schedule 1 was
changed from Orissa to Odisha.

In Re Berubari Union - Supreme Court said article 3 (c) give parliament a power to diminish state territory
but doesn’t give power to cede. Mere exercising power under article 3 is not sufficient, Parliament has to
bring an amendment to the Constitution using power and procedure mentioned in article 368. (It should be
noted that amendment using article 3 can be done by an ordinary majority in the parliament, but under Article
368, special majority is required). So the 9th Constitutional Amendment Act 1960 was enacted to give effect
to the agreement.

Andhra Pradesh (1953) was given statehood on 1 November 1956. Before becoming a separate state it was
the part of the state of Madras. The north-western part of Andhra Pradesh was separated to form Telangana
on 2 June 2014.

Madhya Pradesh (1956) came into existence in 1956. It was further bifurcated in 2000 and Chhattisgarh
became a new [Link]; a landlocked state is the second smallest state of India. It is Popularly known
as the Organic state of India.

Sikkim was merged with the Indian Union on 16 May 1975.

4.1. Amendment to the constitution for creation of new states as per Art.3 can be done:
A. By way of simple majority in the Parliament with the approval of the concerned state.
B. By way of two-thirds majority in either of the houses as creation of states would mean amendment
to the Constitution.
C. By way of simple majority from the state legislatures and assent of the president.
D. With an ordinance by the President of India.

4.2. Which of the following is not a true statement?

A. Since the formation of new states under Article 3 involves changing the First and Fourth Schedule,
it needs a special majority in both houses of Parliament.
B. The 10th Constitutional Amendment Act (1960) was enacted to transfer the Berubari Union to
Pakistan.
C. Parliament has the power to cede a territory under Art 3
D. All the above.

4.3. Parliament has the power under Art 3 to:

A. Alter the boundaries of a State B. Decrease the area of a State
C. Alter the name of a State D. All the above.

4.4. Art 368 of Indian Constitution lays down the procedure to amend the constitution. How can an
amendment be brought to the Constitution?
A. With a simple majority from either of the Houses
B. With a special majority from both the Houses and assent of the President.
C. With a special majority from either of the Houses and assent of the President.
D. Assent of the President.

4.5. List of States and Union Territories are specified in:

A. Schedule 2 of the Constitution. B. Schedule 1 of the Constitution.
C. Part IV of the Constitution. D. None of the above.
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Passage 5
Unlike other countries, we have an elaborate preamble. The Preamble to the Indian Constitution is based on
“Objective Resolution” of Nehru. Nehru introduced an objective resolution on December 13, 1947, and it
was adopted by the Constituent assembly on 22 January 1947. Chief Justice Subba Rao in Golak Nath’s
case had held that “The preamble to an Act sets out the main objectives which the legislation is intended to
achieve”.

In the Berubari Union case, the SC held that “what is true about the powers is equally true about the
prohibitions and limitations”. The court laid down that the preamble would not be resorted to if the language
of the enactment contained in the constitution was clear.

In State of Rajasthan v. Basant Nahata it was held that a preamble with an ordinary Statute is to be resorted
only when the language is itself capable of more than one meaning and not when something is not capable
of being given a precise meaning as in case of public policy.

The vexed question whether the Preamble is a part of the Constitution or not was dealt with in two leading
cases on the subject:
1. Berubari case was the Presidential Reference to SC under Article 143(1) of the Constitution on the
implementation of the Indo-Pakistan Agreement Relating to Beruberi Union and Exchange of Enclaves
which came up for consideration Held that the Preamble, is “a key to open the mind of the makers”
which may show the general purposes for which they made the several provisions in the Constitution
but nevertheless the Preamble is not a part of the Constitution.
2. Kesavananda Bharati case- For the first time, a bench of 13 judges assembled and sat in its original
jurisdiction hearing the writ petition. Thirteen judges placed on record 11 separate opinions.
That the Preamble is a part of the Constitution;

The Preamble has a significant role to play in the interpretation of statutes and also in the interpretation of
provisions of the Constitution.

Held that the objectives specified in the preamble contain the basic structure of our constitution, which
cannot be amended in exercise of the power under Article 368. Being a part of the constitution, the preamble
was not outside the reach of the amending power of the Parliament under Article 368.

In S.R Bommai v. Union of India a nine-judge bench of the apex court observed that the concept of
“Secularism” was very much embedded in our constitutional philosophy. What was implicit earlier had been
made explicit by the constitution (42nd amendment) in 1976, which was the only instance the Preamble was
amended..

Every legislation framed is in conformity with the spirit of the preamble and thus the constitutionality and
objects of the statutes are tested.

[Extracted and edited from an article that appeared in the following Source: [Link]
academike/preamble-constitution-india]

5.1. Which of the following is not a situation to refer to the Preamble as held by the court in the case of
Rajasthan vs. Basant Nahata.?
A. When the language in the statute has more than one meaning.
B. When the language in the statute conveys a straight meaning.
C. When it is not capable of giving precise meaning.
D. None of the above.

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5.2. 42nd Amendment resulted in certain changes to the Preamble. One among them is:
A. Inclusion of terms ‘We the people’ B. Inclusion of ‘Sovereign’
C. Inclusion of ‘secularism’ D. Deletion of ‘objective resolution’

5.3. What does Art 143 of the Constitution deal with?

A. Advisory jurisdiction of the SC.
B. President can refer the matters related to union of India.
C. Binding powers of SC on all the lower courts..
D. Implementation of international agreements between states.

5.4. Preamble to the Constitution is;

A. A part of Constitution and confers powers and duties like any other provision of the Constitution.
B. The objective resolution of the nation.
C. A key to open the mind of makers but is not a part of the Constitution.
D. The guide to understand the main objectives and purpose of the Constitution and helps in interpreting
provisions.

5.5. How many times has the preamble been amended so far?
A. Once
B. Twice
C. Four times
D. Once and a bill to amend preamble is currently pending in the house.

Passage 6
The fundamental rights guaranteed under Article 19(1) are not absolute. They are subject to restrictions
placed in the subsequent clauses of Article19 according to the procedure established by law. No restrictions
can be placed by mere executive or departmental instructions. However, these restrictions must be reasonable
and not arbitrary. Each of these rights is liable to be controlled, curtailed and regulated to some extent by
laws made by Parliament.

Restrictions may be enacted “in the interests of” public order of the general public. A restriction can be said
to be in the interest of public order only if the connection between the restriction and the public order is
direct and proximate. Hence a restriction to be constitutionally valid must satisfy the following two tests:

A legislation arbitrarily invading the right of a person cannot be regarded as reasonable. A restriction to be
valid must have a direct and proximate nexus with the object which the legislation seeks to achieve and the
restriction must not be in excess of that object i.e., a balance between the freedoms guaranteed under Art.
19(1)(a) to (g) and the social control permitted by clauses (2) to (6) of Art. 19. It is the substance of
legislation and not its appearance or form which is to be taken into consideration while assessing its validity.
This introduces the principle of ‘proportionality’. This means the court would consider whether the restriction
imposed by legislation on the Fundamental Rights are disproportionate to the situation and are “not the least
restrictive of the choices”.

Retrospectivity of a law does not make it automatically unreasonable. A statute imposing a restriction with
retrospective effect is not prima facie unreasonable, but retrospectivity is an element to be taken into
consideration in determining whether the restriction is reasonable or not.

A law may be reasonable, but the restriction imposed by it on the exercise of freedom may not be reasonable.
A prohibition on the fundamental right to carry on occupation, trade or business is not regarded as reasonable
if is it imposed not in the interests of the general public but keeping in view the susceptibilities and sentiments
of a section of a community whose way of life, belief or thought is not the same as that of the claimant.

Source: [Link]
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6.1. There are 6 freedoms in total guaranteed by Art. 19 of the constitution and none of them are absolute.
All the freedoms come with a restriction. What is the reason behind such restrictions given by our
forefathers?
A. To strike a balance between legislature and judiciary
B. To strike a balance between rights given to citizens and powers of executive.
C. To strike a balance between powers given to the executive and law and order.
D. To strike a balance between freedoms given and social control.

6.2. A case was filed by one Mr. Ranjit Kumar in the state of Maharashtra against a rule made by the state
which says, no person will be allowed to drive any vehicle on road without wearing a helmet. Violating
this rule was considered an offence and punitive measures were taken by the state. He filed a petition
alleging that the imposed rule was unreasonable and curtailing his free movement in the state. Decide.
A. Restriction imposed is unreasonable as it does not pass the test laid down by SC.
B. Restriction imposed is not unreasonable as it is not curtailing the freedom of movement but preventive
measures are being taken by the state.
C. Restriction is not unreasonable as movements can be restricted by the state as and when it feels.
D. Restriction is not unreasonable as it does not fall under the fundamental rights guaranteed under
Art. 19 of the constitution.

6.3. In the state of Madhya Pradesh, an Act was passed to the extent that during the agricultural season, no
one should engage in the manufacture of beedies. The object and intent of the legislature was that as
there was dearth of labour in the agriculture sector, it was required to divert labour to the agriculture
sector. This restriction of the freedom of occupation was questioned. Is this a reasonable restriction
and is the state justified in doing so?
A. The law is reasonable as the entire country depends on agriculture.
B. The law is an unreasonable restriction on the freedom of occupation.
C. The law is reasonable if we understand the intent of the legislation.
D. None of the above.

6.4. For a restriction on the freedoms guaranteed under art 19 of the constitution, to gain constitutional
validity must:
A. Find a reasonable reason.
B. There must be a direct connection between the restriction and public order it aims at.
C. The legislation must get the approval of the judiciary.
D. All the above.

6.5. A group of people were denied permission and license was also rejected by the magistrate to assemble
and carry out a procession on the road in front of the parliament. This power of granting or refusing a
permission to the magistrate was questioned and alleged to be unreasonable by the group. Is the power
granted to the magistrate unreasonable?
A. Yes. It is unreasonable as the right to assemble is a right granted by art 19.
B. No. It is not unreasonable as the rights can be limited for public order.
C. Yes. It is unreasonable as it restricts freedom of movement.
D. Yes. It is unreasonable as it is biased towards a group of people.

Passage 7
The Doctrine of lis pendens emerged from the Latin maxim ‘ut lite pendent nihil innoveteur’ meaning
‘nothing new should be introduced in a pending litigation’. When a suit or litigation is pending on an immovable
property, then that immovable property cannot be transferred.
To constitute lis pendens, the following conditions should be satisfied:
• A suit or proceeding involving the immovable property should be pending;
• The right to the immovable property must be in question in the suit or proceeding;

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• The property in litigation should be transferred;
• The transferred property should affect the rights of the other person to the transfer.

Doctrine of Lis Pendens is defined in Section 52 of Transfer of Property Act as during the pendency in any
Court having authority by suit or proceedings which is not collusive and in which any right to immoveable
property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by
any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or
order which may be made therein, except under the authority of the Court and on such terms as it may
[Link] pendens is based on ‘necessity’ and as a matter of public policy it prevents the parties from
disposing of a disputed property in such manner as to interfere with Court’s proceedings. In Samarendra
Nath Sinha v. Krishna Kumar Nag, the Supreme Court held that it is true that Section 52 strictly does not
apply to involuntary alienations such as Court sales but, it is well established that the principle of lis pendens
applies to such transfers. Whosoever purchases a property during the pendency of a suit is bound by the
judgment that may be made against the person from whom he derived title, even though such a purchaser
was not a party to the action or had no notice of the pending litigation.

7.1. Which of the following situations attracts Section 52?

A. Sales made by way of private negotiations and during the pendency of suit.
B. When suit is filed, it is mandated that sale can be made only by Court.
C. Sales made by way of private negotiations when suit is discharged.
D. All the above.

7.2. The doctrine of lis pendens applies to

A. moveable property only B. immoveable property only
C. moveable and immovable property D. none of the above

7.3. Suresh has a litigation in determining the title of the property with Ramesh. During the period of
litigation, Suresh initiates a sale of the property in favour of Umesh. Decide the sale in context of the
above passage?
A. According to the doctrine of Lis Pendens, the property can be sold even though property involved is
in litigation.
B. Suresh can sell the property as he is in need of money.
C. As sole owner of the property is Suresh, he is entitled to sell the property.
D. According to the doctrine of Lis Pendens, the property cannot be sold because the property is
involved in litigation.

7.4. In accordance with the Section 52 of Transfer of Property Act mentioned in the above passage, which
of the following statements is false?
A. There should be a pendency of a suit with regard to the title of the property.
B. Transfer of property is not possible at all.
C. The suit or proceeding must not be collusive.
D. The transfer must affect the rights of the other party to litigation.

7.5. Raghu sues Raheem in respect of a house in Raheem’s possession. During the pendency of the suit
Raheem sells the house to Ram. The judgment of the suit is in favour of Raghu. Who has the right on
the property?
A. Raghu has the right on the property as the judgment is in his favour.
B. Ram will have the right on the property as the sale has concluded.
C. Ram’s right on the property is not affected because he was not aware of the litigation.
D. Raheem will retain rights on the property as it was in his possession.

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Passage 8
An ex post facto law imposes penalties retroactively that are upon acts already done, or which increases the
penalty for the past acts. Suppose a person does an act in 1954 which is not then unlawful. A law was
passed in 1956 making that act a criminal offence and seeking to punish that person for what he did in 1954.
Or, suppose punishment prescribed is increased in 1955 to imprisonment for a year and made applicable to
the offences committed before 1955, these are both examples of ex post facto laws. Such laws are regarded
as inequitable and abhorrent to the notions of justice and therefore there are constitutional safeguards
against such laws.

Article.20 (1) provides the necessary protection against an ex post facto law. Under the first part, no person
is to be convicted of an offence except for violating a law in force at the time of commission of the act
charged as an offence. A person is to be convicted for violating a law in force when the act charged is
committed. A law later enacted, making an act done earlier (not an offence when done) as an offence, will
not make the person liable for being convicted under it . Immunity is thus provided to a person from being
tried for an act under a law enacted subsequently, which makes the law unlawful . This means if an act is
not an offence on the date of its commission, a law enacted in future cannot make it [Link], the rule of
beneficial construction requires that ex-post facto law should be applied to reduce the rigorous sentence of
the previous law on the same subject. Such a law is not affected by Article 20(1).

After the Kathua rape case, The cabinet approved the Criminal Law (Amendment) Ordinance, 2018,(the
Ordinance). The Ordinance was signed by the President of India and it came into force on April 21, 2018.
The Ordinance enhanced punishments for offenders convicted of raping minors. As a law reform exercise
the state adopted the same methodology based on impulses rather than sound legal prepositions and
deliberations. The Criminal Law (Amendment) Bill, 2018 (hereinafter the Bill) was introduced in the Parliament
to replace the Ordinance with an Act of Parliament. The Bill was passed by both the houses and the
Presidential assent and came into force as the Criminal Law (Amendment) Act, 2018(CLAA) from April
21, 2018. The CLAA, which replaced the Ordinance with a retrospective effect, amends four central
legislations namely: The IPC, 1860;the Code of Criminal Procedure, 1973 (Cr.P.C);the Indian Evidence Act,
1872 (IEA);the Protection of Children from Sexual Offences Act, 2012 (POCSO).

[Extracted, with edits and revisions, from “Retrospective Operation of Criminal Law”,http://
[Link]/article/[Link]]

8.1. Mr. D a 35-year old teacher was accused of raping a minor known as Ms. Z in May 2018. The trial
court imposed a higher punishment as per the amendments made in the ordinance/CLAA. Whether the
trial court was right in punishing Mr. D as per the ordinance/CLAA?
A. Yes, as the commission of offence was in May 2018 and the CLAA came into force from April
2018.
B. No, as this is retrospective application of law and this is not allowed as per Article 20(1).
C. Yes, as the ordinance with the higher punishment came into effect in April 2018, and the crime was
committed after that.
D. Both a and c

8.2. Suppose both the houses of Parliament had not passed the Bill due to which the ordinance ceased to
exist and the Trial Court rendered a higher punishment as per the ordinance to Mr. D. Will this violate
article 20 of the Constitution?
A. Yes, as disapproving the ordinance by the Parliament will render it ineffective and the punishment
mentioned in the ordinance does not apply.
B. Yes, as the ordinance was in effect at the time of the commission of the offence.
C. No, because even if it is not approved by Parliament the ordinance will still operate as law between
the date of ordinance and the date of disapproval.
D. No, because it does not violate any fundamental right of the accused.

Abhyaas/Law Prep/C2/LeR 7 10
 LAW
Legal Reasoning
8.3. Which argument is likely to be made by Mr. D to prove that he is protected under Article 20 and the
ordinance cannot be applied to him if the ordinance is disapproved by the Parliament?
A. Mr.D’s right to equality is violated as when the ordinance was valid he was convicted for twenty
years. After the disapproval of the same, accused committing the same offence as Mr. D will be
punished for a minimum of 10 years only as per the law which existed before the ordinance.
B. Mr. D’s right to equality is violated as when the ordinance was valid he was convicted for ten years.
After the disapproval of the same, accused committing the same offence as Mr. D will be punished
for a minimum of 20 years as per the law which existed before the ordinance.
C. Mr. D will invoke the rule of beneficial construction so that the higher punishment of 20 years as per
the ordinance need not be levied, and he should be punished for only 10 years, as per the earlier law
which comes into force immediately after the disapproval of the ordinance.
D. Both (A) and (C)

8.4. A boy of 16 years was convicted for committing an offence of house-trespass and outraging the
modesty of a girl aged 7 years. The magistrate sentenced him for six months rigorous imprisonment
and also imposed fine. After the judgment of the magistrate, the Probation of Offenders Act, 1958
came into force. It provided that a person below 21 years of age should not ordinarily be sentenced to
imprisonment. Can ex-post facto law in such a case be applied to reduce the punishment?
A. No, as this will violate article 20(1) of the Constitution of India which states that an ex-post facto
law cannot be applied to acts which are committed when the law was not enacted.
B. No, as this will mean that the law will apply retrospectively and that is against article 20(1) of the
Constitution of India.
C. Yes, the punishment can be reduced as the rule of beneficial interpretation required that ex-post
facto could be applied to reduce the punishment and this will not violate Article 20(1).
D. None of the above.

8.5. Suppose a boy of 16 years was not convicted for committing an offence of house-trespass and outraging
the modesty of a girl aged 7 years as the law when he committed the act stated that no minor can be
sentenced to imprisonment. But, an ex-post facto law states that this act by minors is to be given a
sentencing and punishment. Can the ex-post facto law apply on the minor in such a scenario?
A. Yes, as per the rule of beneficial construction as laid down in the above paragraph.
B. Yes, as the minor is supposed to be imprisoned for such a gruesome act.
C. No, as this violates Article 20(1) and does not fall within the exception of rule of beneficial construction.
D. Both (A) and (B)

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