Passage Based Mock Questions on Legal Reasoning for CLAT 2020

Passage Based Mock Questions on Legal Reasoning for CLAT 2020

Passage 1

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

The two organs of both legislature and executive could be seen as a fusion of power. Executive creates law through the power vested on them known as the delegated legislation by the Parliament provided there is effective scrutiny of delegated legislation. The fusion between Executive and Legislative power lies in the cabinet, which often consists of a prime minister and cabinet (“government”), is drawn from the legislature (parliament).​​ House of Commons Disqualification Act 1975 preserves separation between executive and legislature. S2 of the Act states that holders of judicial office, civil servants, members of armed force, police and members of foreign legislature are disqualified from holding parliamentary office. It also limits the number of Government Minister in the House of Commons to 95. On the other hand, considering the 95 members with the Parliamentary Private Secretaries, the government enjoys the support of some 120 members although limited under the 1975 Act.​​ Contrasting with the United States of America and France, the Executive and Legislature are separate. Both the estates are often under control of different political parties. A total failure of cooperation would result in a deadlock, though Senator Dole achieved this briefly in 1995 and was subjected to public censor for so doing. Nonetheless, cooperation can be poor, adversely affecting the effectiveness of the Executive. Unlike our said “fusion of powers”, close relationship between Executive and Parliament represented the efficient secret of English Constitution.​​ However, the relationship between Legislature and Executive is seen to have massive dominating power which creates space for the both estates to abuse their powers. Given the fact where members of the Legislature and Executive are almost similar, the pair could apparently pass any law which benefits them. But this is unlikely to happen as the government is threatened by the possibility of vote of no confidence in the future and due to the convention of ministerial accountability towards the parliament.​​ The Courts are the Queens Court and the Queen in the head of Executive. However, Queen is no longer able to act as a judge in her own court under Prohibitions Del Roy 1607 and cannot create laws outside parliament under Bill of Right 1688. The​​ Privy Council now exercises the executive and judiciary role.​​ Royal prerogative being the residue value of the crown is usually being exercised by the Executive. In Council of Civil Service Unions v Minister of State for Civil Service, House of Lords held that courts have jurisdiction to review exercise of the executive power irrespective of whether source of power is statutory or under prerogative. By convention, though, it is unlikely for Judiciary to question matters being referred to as national security and “high policy”. This suggests that Judiciary actually has the right to question the exercise of royal prerogative by the Executive.

Questions

  • Which of the following persons are disqualified from holding parliamentary positions?

  • Judges and police​​ 

  • Army members and ministers

  • Ministers and judges

  • Police and doctors

Ans. a

Rationale:​​ S2 of the Act states that holders of judicial office, civil servants, members of armed force, police and members of foreign legislature are disqualified from holding parliamentary office.

  • House of Commons could have maximum members to what number?

  • 94

  • 95

  • 110

  • 120

Ans. b

Rationale:​​ It also limits the number of Government Minister in the House of Commons to 95

  • Executive and legislature works in fusion which of the following states?

  • USA

  • UK

  • France

  • India

Ans. b

Rationale:​​ Contrasting with the United States of America and France, the Executive and Legislature are separate

  • Under which of the following landmark judgements of India judicial review was held as an integral part of the Constitution?

  • Kesavananda Bharti v. State of Kerala

  • Minerva Mills v. Union of India

  • Raj Narain v. State of UP

  • L. Chandra Kumar v Union of India

Ans. d

Rationale:​​ In L. Chandra Kumar v UOI (1997) 3 SCC 261, the Supreme Court held that power of judicial review under Article 32 and 226 is an integral and essential feature of the basic structure of our Constitution.

  • What are the disadvantages of having Legislative and Executive powers in the same person?

  • Any person can be detained arbitrarily

  • A monopoly of power will be created

  • Any law can be passed which benefits them

  • Hereditary rule in obtaining power will be followed

Ans. c

Rationale:​​ Given the fact where members of the Legislature and Executive are almost similar, the pair could apparently pass any law which benefits them.

Passage 2

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

Delegated legislation is not without its criticisms. Firstly, it has been suggested that by having delegated legislation to make and/or amend laws etc it lacks democracy as too much delegated legislation is made by unelected people. Secondly, delegated legislation is subject to less Parliamentary scrutiny than primary legislation. Parliament therefore has a lack of control over delegated legislation and this can lead to inconsistencies in laws. In addition, delegated legislation therefore has the potential to be used in ways which Parliament had not anticipated when it conferred the power through the Act of Parliament. One further criticism of delegated legislation is the lack of publicity surrounding it. When law is made by statutory instrument the public are not normally notified of it whereas with Acts of Parliament, on the other hand, they are widely publicised. One reason for the lack of publicity surrounding delegated legislation is because of the volume of delegated legislation made and this results in the public not being informed of the changes to law. There has also​​ been concern expressed that too much law is made through delegated legislation.​​ There are controls in place in relation to delegated legislation to ensure that those who make law under it are doing it in an appropriate manner. Parliament exercises control over delegated legislation in that when the Act of Parliament is created, Parliament stipulate in the Act of Parliament the parameters with regard to delegated legislation. Further, there are scrutiny committees which consider delegated legislation within a Bill as it passes through the Houses of Parliament. Delegated legislation is also subject to control through the Court. A piece of delegated legislation can be deemed by the Court to be ultra vires. This means that the body that created the delegated legislation acted beyond the powers conferred to them by statute. An example where a body would have acted ultra vires would be if the delegated legislation goes beyond what Parliament intended or where the procedural rules to be followed in relation to the delegated legislation have not been followed. Any Court action which is brought challenging delegated legislation is done through the means of Judicial Review. If the Court finds that a piece of delegated legislation is ultra vires then that legislation can be declared void.​​ The following are the three main types of delegated legislation:

By Laws: They are made by Local Authorities to deal with matters within their particular locality.

Statutory Instruments: These are made by Government Ministers and they insert the detail to Acts of Parliament. Statutory Instruments make up the majority of delegated legislation that is made. Around 3,000 Statutory Instruments are issued each year

Orders in Council: They are made by the Queen on the advice of the Government and are usually made when Parliament is not sitting. They can be used by the Government in emergency situations.

Questions

  • What are the checks ensured on delegated legislation?

  • Parliament stipulate in the Act of Parliament the parameters with regard to delegated legislation

  • Scrutiny committees consider​​ delegated legislation within a Bill as it passes through the Houses of Parliament.

  • It is​​ subject to control through the Court

  • All the above

Ans. d

Rationale:​​ Parliament exercises control over delegated legislation in that when the Act of Parliament is created, Parliament stipulate in the Act of Parliament the parameters with regard to delegated legislation. Further, there are scrutiny committees which consider delegated legislation within a Bill as it passes through the Houses of Parliament. Delegated legislation is also subject to control through the Court.

  • Under which powers can court adjudicate on delegated legislation?

  • Judicial review

  • Habeas corpus writ

  • Epistolary power

  • None of the above

Ans. a

Rationale:​​ Any Court action which is brought challenging delegated legislation is done through the means of Judicial Review.

  • What do you understand by the term ‘ultra vires’?

  • Within the powers

  • Beyond the powers

  • Both a and b​​ 

  • None of the above

Ans. b

Rationale: Ultra vires means​​ beyond one's legal power or authority.

  • What is the​​ difference between delegated legislations through by laws and statutory instruments?

  • By laws and Statutory Instruments both are made by Government Ministers

  • By laws are made by​​ Government Ministers and Statutory Instruments are made by Local Authorities

  • By laws deal with whole country and Statutory Instruments​​ deal with a particular community

  • By laws are made by Local Authorities and Statutory Instruments​​ are made by Government Ministers

Ans. d

Rationale:​​ By Laws: They are made by Local Authorities to deal with matters within their particular locality.

Statutory Instruments: These are made by Government Ministers and they insert the detail to Acts of Parliament.

  • Parliament​​ passed an order notifying that local authorities can give subsidy to indigent persons up to maximum Rs 2, 00,000 but the local authorities of Raipur District gave subsidy of Rs 2.5 Lac witnessing the urgent need of the same. Decide​​ 

  • Local authorities can do so as it is not beyond the procedural rules established by the Parliament

  • Local authorities cannot do so as it is beyond the procedural rules established by the Parliament

  • Local authorities can do so as it is​​ within its powers during the urgent need

  • Local authorities cannot do so as it​​ can only be done​​ by the Parliament

Ans. b

Rationale:​​ a body would have acted ultra vires would be if the delegated legislation goes beyond what Parliament intended or where the procedural rules to be followed in relation to the delegated legislation have not been followed.

 

 

 

 

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