CLATalogue Legal Reasoning Test Series Paper 8

CLATalogue Legal Reasoning Test Series Paper 8

Passage 1

Source: (https://www.lawteacher.net/free-law-essays/judicial-law/)

Delegated legislation also referred to as secondary legislation, is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or body to make legislation. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make law and rules through delegated legislation. The legislation created by delegated legislation must be made in accordance with the purposes laid down in the Act. The function of delegated legislation is it allows the Government to amend a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Also, by way of an example, a Local Authority have power given to them under certain statutes to allow them to make delegated legislation and to make law which suits their area. Delegated legislation provides a very important role in the making of law as there is more delegated legislation enacted each year than there are Acts of Parliament. In addition, delegated legislation has the same legal standing as the Act of Parliament from which it was created.​​ There are several reasons why delegated legislation is important. Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can be amended and/or made without having to pass an Act through Parliament, which can be time consuming. Changes can therefore be made to the law without the need to have a new Act of Parliament and it further avoids Parliament having to spend a lot of their time on technical matters, such as the clarification of a specific part of the legislation. Secondly, delegated legislation allows law to be made by those who have the relevant expert knowledge. By way of illustration, a local authority can make law in accordance with what their locality needs as opposed to having one law across the board which may not suit their particular area. A particular Local Authority​​ can make a law to suit local needs and that Local Authority will have the knowledge of what is best for the locality rather than Parliament. Thirdly, delegated legislation can deal with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation. Finally, delegated legislation can be used to cover a situation that Parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making. Delegated legislation is therefore able to meet the changing needs of society and also situations which Parliament had not anticipated when they enacted the Act of Parliament.

Questions

  • In​​ order to make amendments in​​ law is it always necessary that new Act has to be passed by the Parliament?

  • Yes, through delegated legislation changes can be made in law without​​ the need to have a new Act of Parliament

  • No, through delegated legislation changes can be made in law without​​ the need to have a new Act of Parliament

  • Yes, through delegated legislation changes cannot be made in law without​​ the need to have a new Act of Parliament

  • No, through delegated legislation changes cannot be made in law without​​ the need to have a new Act of Parliament

Ans. b

Rationale:​​ delegated legislation can be amended and/or made without having to pass an Act through Parliament, which can be time consuming. Changes can therefore be made to the law without the need to have a new Act of Parliament and it further avoids Parliament having to spend a lot of their time on technical matters, such as the clarification of a specific part of the legislation.

  • Unanticipated situations can be dealt by?

  • Primary legislation

  • Secondary legislation​​ 

  • Both a and b

  • None of the above

Ans. b

Rationale:​​ delegated legislation can be used to cover a situation that Parliament had not anticipated at the time it enacted the piece of​​ legislation, which makes it flexible and very useful to law-making.​​ Delegated legislation also referred to as secondary legislation

  • What is the difference between primary and delegated legislation?

  • Through secondary legislation​​ Parliament creates the framework of a particular law​​ whereas under primary legislation Parliament gives​​ authority​​ ​​ to​​ other persons to provide more detail to an Act of Parliament

  • Through primary legislation​​ Parliament creates the framework of a particular law​​ whereas under delegated legislation Parliament gives​​ authority​​ ​​ to​​ other persons to provide more detail to an Act of Parliament

  • Through primary legislation​​ Parliament​​ does not​​ creates the framework of a particular law​​ whereas under delegated legislation Parliament gives​​ authority​​ to​​ other persons to provide more detail to an Act of Parliament.

  • Through delegated legislation​​ Parliament creates the framework of a particular law​​ whereas under primary legislation Parliament gives​​ authority​​ ​​ to​​ other persons to provide more detail to an Act of Parliament

Ans. c

Rationale:​​ By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make law and rules through delegated legislation.

  • The weather forecast of ‘X’ place depicted that in 2 days the city will be hit by strong cyclone. The district magistrate desires to pass order of evacuation but is unable to get sanction from the state government so fast. Decide what can the district magistrate do under his authority?

  • The powers of legislation may be delegated to district magistrate and under such authority he can make an Act to deal with emergency situation

  • The powers of legislation may be delegated to district magistrate and under such authority he still cannot make an Act to deal with emergency situation as it is the task of ​​ Parliament

  • The powers of legislation cannot be delegated to district magistrate and under such authority he cannot make an Act to deal with emergency situation

  • The powers of legislation may be delegated to district magistrate and under such authority he can make an Act to deal with emergency situation with the sanction required by Parliament

Ans. a

Rationale:​​ delegated legislation can deal with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation.

  • The Executive Magistrate of Ghaziabad has been allowed to make laws for waste management in his city. Under which powers is he allowed to do it?

  • Managerial legislation

  • Primary legislation

  • Delegated legislation

  • All the above

Ans. c

Rationale:​​ Further, delegated legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Also, by way of an example, a Local Authority have power given to them under certain statutes to allow them to make delegated legislation and to make law which suits their area.

Passage 2

Source: (https://www.lawteacher.net/free-law-essays/judicial-law/)

Earlier English cases refused to grant custody of children to the mother accused of adultery, while an exception was made in cases where the father was​​ guilty​​ of the same offence. It was believed that mothers accused of adultery were not were not of good character and were hence unfit to raise children. This view was changed over time, and it was held that parents accused of adultery will not be deprived of the custody of the child. It was held that adultery would have no bearing on the​​ welfare of the child.​​ While gender had nothing to do with the offence of adultery, women were considered to be of worse character than men and thus they were not given their rights.​​ In the case of Portnoy v. Strasser​​ where the custody of the children was contested between the natural mother and the grandmother, the court awarded custody to the grandmother on the grounds that the natural mother was of questionable character having remarried a man of a different race. This perception was later changed many years later where the US​​ Supreme Court held that such prejudices should not creep into decision making.​​ We can see that even though race could not have had an impact on the welfare of the child, the​​ judges’​​ bias against a particular race made him perceive the woman to be of a bad character.​​ In several other cases, religion has operated as a bias. For example in the case of A.B. v. C.B.​​ where the mother of an illegitimate child sought to revoke consent for the adoption of the child, the​​ court looked at the religious sensibilities of the parties to determine their character. It was held that the mother of the child was not a practicing catholic and that she herself was an illegitimate child. The adoptive parents on the other hand were perceived to be of good character as they were practicing Roman Catholics, and hence custody was granted to the adoptive parents using the best interest principle.​​ Similarly in another English case, Helen Skinner v. Sophia Evelina Orde,​​ where an English lady residing in India, who lost her husband during the sepoy mutinies of 1857, sought to convert to Islam in order to become the second wife of an Indian Muslim man, her conversion was deemed to be immoral and the custody of the child was taken away from the mother. Distrust towards another religion and the coloured views of the judge on religion lead to the branding of the woman as a person of bad character.

Questions

  • A was born to W from a person other than her husband. The court sought to revoke her rights to have the custody of his child considering her of bad character. Decide​​ 

  • The decision is incorrect as biological mother has all the rights on her child

  • The decision is correct staying with adulterous mother is bad for child’s upbringing

  • The decision was incorrect as​​ adultery would have no bearing on the​​ welfare of the child

  • The decision is correct as biological mother has no rights on her child

Ans. c

Rationale:​​ ​​ parents accused of adultery are​​ not be deprived of the custody​​ of the child as​​ adultery would have no bearing on the​​ welfare of the child.

  • What do you understand by the term adultery?

  • Having an illegitimate child

  • Having another spouse in the life of one spouse

  • Living separately from the legal spouse with someone else

  • Having sexual relation of one spouse with another person

Ans. d

Rationale:​​ adultery refers to​​ voluntary sexual intercourse between a married person and a person who is not their spouse.

  • Isha was born to Rubi from Aman who was not her legally wedded husband. Isha got married to Ram and gave birth to son whose biological father was​​ not known. On death of Ram, Isha was denied to give consent for revoking adoption on the ground that she herself was an illegitimate child. Decide​​ 

  • Isha should have full rights on her child, being illegitimate does not affect the welfare of the child

  • Isha should not have rights on her child, being illegitimate does not affect the welfare of the child

  • Isha should not have full rights on her child, being illegitimate affects the welfare of the child

  • Isha should have full rights on her child, being illegitimate affects the welfare of the child and upbringing​​ 

Ans. a

Rationale:​​ Illegitimacy of mother is no valid ground to deny the mother rights on her child

  • A woman of Hindu religion changed her religion to Christianity. On this ground she was denied the custody of her child. Decide​​ 

  • The decision is correct as conversion of religion is an immoral act and children should not stay with such parents

  • The decision is incorrect as conversion of religion is not immoral​​ act and children’s upbringing is not affected by it

  • The decision is correct as conversion of religion is an​​ not​​ immoral act and children should not stay with such parents

  • The decision is incorrect as conversion of religion is an immoral act and children’s upbringing is affected by it

Ans. b

Rationale:​​ conversion of religion is no ground for denial of custody of child.

  • State the landmark judgement of Supreme Court of India which stated that adultery shall not be considered as an offence under IPC.

  • Navtej Johar v.​​ Union of India

  • Shafin Jahan v.​​ Union of India

  • Joseph Shine v. Union of India

  • Indian Young Lawyers Association v.​​ The State Of Kerala

Ans. c

Rationale:​​ ​​ In the case of​​ Joseph Shine v. Union of India​​ the Court decriminalised adultery, striking down Section 497 of the Indian Penal Code, 1860 (IPC)

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