Insta_Legal 2.

Rankers’ Study Material

Part of the most Comprehensive Classroom Training, Prep Content & Test Series across the Nation.
From the producers of A.I.R. 2, 3 and 5 in CLAT 2019.

MOST IMPORTANT TOPICS FOR LEGAL REASONING AND THEIR LUCID EXPLANATIONS

IMPORTANCE OF INSTA_LEGAL 2.0

 We have prepared a list of around 150 topics (90 of these were shared with you earlier). There is a good possibility
that the passages in the upcoming CLAT will be around these topics. So to boost your preparation, we have
prepared a summary of each topic and will be sharing with you on our telegram channel.

 Insta_Legal 2.0 will contain the summary of not just 90 topics that we have shared earlier but also many new topics
which we have added recently.

 Those of you who have already gone through the Insta_Legal before should not skip Insta_Legal 2.0. owing to the
relevance Insta_Legal 2.0 Holds, reading it multiple times before your exam will help you in understanding the
passage with much more clarity and efficiency.

HAPPY READING 😊

Anti-Defection Laws

What is the anti-defection law?

Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed
his party thrice within the same day in 1967. The anti-defection law sought to prevent such political defections which
may be due to reward of office or other similar considerations.

The Tenth Schedule was inserted in the Constitution in 1985. It lays down the process by which legislators may
be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other
member of the House. A legislator is deemed to have defected if he either voluntarily gives up the membership of his
party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or
voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament
and state assemblies.

How has the law been interpreted by the Courts while deciding on related matters?
The Supreme Court has interpreted different provisions of the law. We discuss some of these below.
The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation
The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’. However, the Supreme
Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be
inferred by his conduct. In other judgments, members who have publicly expressed opposition to their party or support
for another party were deemed to have resigned.
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In the case of the two JD(U) MPs who were disqualified from Rajya Sabha on Monday, they were deemed to have
‘voluntarily given up their membership’ by engaging in anti-party activities which included criticizing the party on public
forums on multiple occasions, and attending rallies organised by opposition parties in Bihar.
Decision of the Presiding Officer is subject to judicial review
The law initially stated that the decision of the Presiding Officer is not subject to judicial review. This condition was
struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the
High Court and Supreme Court. However, it held that there may not be any judicial intervention until the Presiding
Officer gives his order.
In 2015, the Hyderabad High Court, refused to intervene after hearing a petition which alleged that there had been
delay by the Telangana Assembly Speaker in acting against a member under the anti-defection law.

Is there a time limit within which the Presiding Officer has to decide?
The law does not specify a time-period for the Presiding Officer to decide on a disqualification plea. Given that courts
can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no
option but to wait for this decision to be made.
There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding
such petitions. In some cases this delay in decision making has resulted in members, who have defected from their
parties, continuing to be members of the House. There have also been instances where opposition members have
been appointed ministers in the government while still retaining the membership of their original parties in the
legislature.
In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small
groups gradually to join the ruling party. In some of these cases, more than 2/3rd of the opposition has defected to the
ruling party.
In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller
groups. However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after
more than 2/3rd of the opposition has defected to the ruling party. The Telangana Speaker in March 2016 allowed the
merger of the TDP Legislature Party in Telangana with the ruling TRS, citing that in total, 80% of the TDP MLAs (12
out of 15) had joined the TRS at the time of taking the decision.
In Andhra Pradesh, legislators of the main opposition party recently boycotted the entire 12-day assembly
session. This boycott was in protest against the delay of over 18 months in action being taken against legislators of
their party who have allegedly defected to the ruling party. The Vice President, in his recent order disqualifying two
JD(U) members stated that all such petitions should be decided by the Presiding Officers within a period of around
three months.

Does the anti-defection law affect the ability of legislators to make decisions?
The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides. However,
this law also restricts a legislator from voting in line with his conscience, judgement and interests of his electorate.
Such a situation impedes the oversight function of the legislature over the government, by ensuring that members
vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue. Several
experts have suggested that the law should be valid only for those votes that determine the stability of the government
(passage of the annual budget or no-confidence motions).

ANTI-DOPING framework & agencies (WADA/NADA)

World Anti Doping Agency (WADA) is the unique authority to set the rules of doping and banned substances all
around the World and the prohibited list is annually updated. It aims to prevent the use of the compounds that may
increase athletic performance, hence create a fair and equal status for all competitors and also protect athlete’s health
from the unexpected or side effects of the compounds that have a potential for misuse. The list of 2018 consists three
major titles of prohibited substances and methods. Prohibited substances are classified as “S” code, whereas
prohibited methods as “M” and substances prohibited in particular sports as “P.” The present review criticize some
illogical parts of the 2018 prohibited list. For example; despite the most of the beta-2 agonists, diuretics/masking
agents and stimulants were banned, a few of them are not accepted as doping in the use of limited doses. Some
compounds that have a serious potential to increase mood and physical resistance similar to amphetamines, such as

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MAO inhibitors and anticholinergics have not been banned yet by WADA. Also the prohibition/allowance of beta
blockers and alcohol in some sports were criticized in the present paper.

Case of AMAR MURALIDHAR VS. NATIONAL ANTI DOPING AGENCY (“NADA”) in Sports Law
Brief facts of this case are as follows:
1. In August 2010 the athlete, Amar Murlidharan had participated in 64th National Aquatic Championships in Jaipur,
Rajasthan.
2. He was randomly selected by NADA to provide a urine sample for anti-doping control test. He was one of the 39
athletes who gave their urine sample of dope test.
3. The samples were transported to laboratory situated at New Delhi.
4. In the month of September 2010, the athlete was notified by NADA that the Dope Tests were positive, technically
meaning that the Adverse Analytical finding was found in athlete’s sample.
5. There was a presence of a Prohibited substance classified by World Anti Doping Agency (“ WADA”)
named ‘methylhexaneamine’ in short “MHA”.
6. The proceedings are first argued before the Anti-Doping Disciplinary Panel (“ADDP”).
7. In September 2012, the ADDP imposed 2 year ban on the athlete in accordance with Article 10.2. The Panel
concluded that there was a violation of Article 2.1 of the NADA Rules hence the ban is justified.
8. The Athlete approached the Anti Doping Appeal Panel (“ADAP”) on November, 2012. After substantial delays, in June
2014 the appeal of the athlete was dismissed upholding the finding of ADDP.

CRICKET FOLLOWERS:

The ICC became a signatory of World Anti-Doping Agency (WADA) in July 2006

The ICC Anti-Doping Code compliant with the WADA Code ensures cricket plays its part in the global fight against drugs in
sport. Through the adoption and implementation of the ICC Anti-Doping Code, ICC continues in its efforts to:
Maintain the integrity of the sport of cricket
Protect the health and rights of all participants in the sport of cricket
Keep the sport of cricket free from doping

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ANTI-DUMPING REGIME
What is dumping?
Dumping is, in general, a situation of international price discrimination, where the price of a product when sold in the
importing country is less than the price of that product in the market of the exporting country. Thus, in the simplest of
cases, one identifies dumping simply by comparing prices in two markets. However, the situation is rarely, if ever, that
simple, and in most cases it is necessary to undertake a series of complex analytical steps in order to determine the
appropriate price in the market of the exporting country (known as the “normal value”) and the appropriate price in
the market of the importing country (known as the “export price”) so as to be able to undertake an appropriate
comparison.
In economics, “dumping” is a kind of predatory pricing, especially in the context of international trade.
Dumping is the act of charging a lower price for the like goods in a foreign market than one charges for the
same good in a domestic market for consumption in the home market of the exporter. Under the World Trade
Organization (WTO) Agreement, dumping is condemned (but is not prohibited) if it causes or threatens to cause
material injury to a domestic industry in the importing country. The term has a negative connotation, as advocates of
competitive markets see “dumping” as a form of protectionism. The logic behind anti-dumping duties is to save
domestic jobs, although critics argue that this leads to higher prices for domestic consumers and reduces the
competitiveness of domestic companies producing similar goods. With the increase in international trade there has
been significant increase in anti dumping duties levied by all countries. In this chapter we examine the provisions of
WTO on Anti Dumping and procedures of anti dumping in India.
Anti dumping is a measure to rectify the situation arising out of the dumping of goods and its trade distortive
effect. Thus, the purpose of anti dumping duty is to rectify the trade distortive effect of dumping and re-
establish fair trade. The use of anti dumping measure as an instrument of fair competition is permitted by the WTO.
In fact, anti dumping is an instrument for ensuring fair trade and is not a measure of protection per se for the domestic
industry. It provides relief to the domestic industry against the injury caused by dumping. In fact, anti dumping is a
trade remedial measure to counteract the trade distortion caused by dumping and the consequential injury to the
domestic industry. Only in this sense, it can be seen as a protective measure. It can never be regarded as a
protectionist measure.

REGULATORY FRAMEWORK FOR ANTI DUMPING IN INDIA

India is firmly committed to the principle of free and fair trade among nations, which is the very foundation of the
multilateral trade order established by WTO. While a giant step has been taken by India towards establishment of
free trade regime with the phasing out of Quantitative Restrictions on imports, there is also a need to ensure fair trade.
Depending upon the need, anti-dumping, anti-subsidy countervailing and safeguard measures have been invoked in
the past. All these measures are in the nature of trade remedies, which the domestic industry could take advantage
of subject to the fulfillment of essential conditions and criteria as mandated under law. The government has already
put in place the requisite legal and institutional mechanism for administering these measures. However, various
concepts and legal and operational aspects involved in these schemes need to be understood in the proper sense
and in the right perspective. Under the existing WTO arrangement, and in terms of various provisions under the
Customs Tariff Act of 1975 (as amended in 1995) and Rules framed there under, anti-dumping and allied measures
constitute the legal framework, within which the domestic industry can seek necessary relief and protection against
dumping of goods and articles by exporting companies and firms of any country from any part of the world.

SAFEGUARDS
There is one more trade remedial measure called “safeguards” which are applied as an emergency measure in
response to surge in imports of a particular item. Safeguards are applied when:– there is a surge in imports of a
particular product irrespective of a particular country/ies and, – it causes serious injury to the domestic industry.
Safeguard measures are applied to all imports of the product in question irrespective of the countries in which it
originates or from which it is exported. This aspect distinguishes Safeguards from anti dumping and anti subsidy
measures which are always country specific and exporter specific. Safeguards measures are administered in India
by an Authority called Director General (Safeguards) who functions in the jurisdiction of the Department of Revenue,
Ministry of Finance.

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DEATH PENALTY IN INDIA (CAPITAL PUNISHMENT)

Capital punishment, also called Death Penalty, execution of an offender sentenced to death after conviction by a
court of law for a criminal offense.
Capital punishment should be distinguished from extrajudicial executions carried out without due process of law. The
term death penalty is sometimes used interchangeably with capital punishment, though imposition of the penalty is
not always followed by execution (even when it is upheld on appeal), because of the possibility of commutation to life
imprisonment.
The term "CAPITAL PUNISHMENT" stands for most severe form of punishment. It is the punishment which is
to be awarded for the most heinous, grievous and detestable crimes against humanity.
While the definition and extent of such crimes vary from country to country, state to state, age to age, the implication
of capital punishment has always been the death sentence. By common usage in jurisprudence, criminology and
penology, capital sentence means a sentence of death.

Brief Historical Era of Death Penalty in India :

At independence in 1947, India retained the 1861 Penal Code which provided for the death penalty for murder. During
the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly
expressed the ideal of abolishing the death penalty, but no such provision was incorporated in the Constitution.
Private members’ bills to abolish the death penalty were introduced in both houses of parliament over the next two
decades, but none of them was adopted. It has been estimated that 3000 to 4000 executions occurred between 1950
and 1980. Information on the numbers of persons sentenced to death and executed from 1980 to the mid- 1990s is
harder to measure. It is estimated that two or three persons were hanged per year.
In the Bachan Singh judgment of 1980, the Supreme Court ruled that the death penalty should be used only in the
“rarest of rare” cases.

Indian Laws and Death Penalty

In India Article 21 of the Constitution titled ‘Protection of life and personal liberty’ says: No person shall be
deprived of his life or personal liberty except as according to procedure established by law.
The Indian Penal Code, 1860 awards death sentence as a punishment for various offenses. Some of these capital
offences under the IPC are punishment for criminal conspiracy (Section 120B), murder (Section 302), waging or
attempting to wage war against the Government of India (Section 121), abetment of mutiny (Section 132), dacoity
with murder (Section 396) and others. Apart from this, there are provisions for the death penalty in various legislations
like the NDPS Act, anti-terrorism laws etc.
Article 72 of the Constitution of India: “Power of President to grant pardons, etc, and to suspend, remit or commute
sentences in certain cases-(1) The President shall have the power to grant pardons, reprieves, respites or remissions
of punishment or to, remit or commute the sentence of any person convicted of any offence;
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the
executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death;
(2) Nothing in subclause (a) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death
exercisable by the Governor of a State under any law for the time being in force.”
Similarly, the pardoning powers of the Governor of a State are mentioned in Article 161.

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DEFAMATION LAWS IN INDIA

The law of defamation dates back to the Roman Empire. The offence of libellis famosis was sometimes punishable
by death. While the penalties and costs attached to defamation today are not as serious, they can still have a notorious
“chilling effect,” with prison sentences or massive compensation awards still an occupational hazard for journalists in
many countries. Defamation continues to fall within the criminal law in a majority of states, although in many instances
criminal defamation has fallen into disuse. Defamation as a tort, or civil wrong, continues to be very widespread. In
terms of modern human rights law, defamation can be understood as the protection against “unlawful attacks” on a
person’s “honor and reputation” contained in Article 17 of the ICCPR. Defamation law is only intended to protect the
individual right to a reputation. It follows, therefore, that only an individual can sue to protect that right.
Generally defamation requires that the publication be false and without the consent of the allegedly defamed person.
Words or pictures are interpreted according to common usage and in the context of publication. Injury only to feelings
is not defamation; there must be loss of reputation. The defamed person need not be named but must be
ascertainable. A class of persons is considered defamed only if the publication refers to all its members particularly if
the class is very small- or if particular members are specially imputed.
Categories of defamation
For historical reasons, defamation can be divided into the following categories:
Libel – Representation in a permanent form, e.g., writing, printing, picture, effigy or statute.
Slander – Depiction in transient form. It is basically through words spoken or gestures.
Essentials characteristics of defamation
i. The statement must be defamatory.
ii. The said statement must refer to the plaintiff.
iii. The statement must be published i.e., communicated to at least one person other than the claimant.
In India, there is no such distinction between libel and slander. Both libel and slander are criminal offence. For better
understanding, it can be divided into two categories:
i. Criminal
ii. Civil
Defamation as a crime The IPC under chapter XXI sections 499-502 protects an individual’s / person’s reputation.
Defamation against the state is contained in section 124A [Sedition], Section 153 of the Code provides for defamation
of a class i.e., community [Riot], while section 295A deals with hate speech with regards to outraging religious
sentiments. [Hate Speech]
If a person is found guilty of having committed defamation in terms of section 499 of the IPC, the punishment is
stipulated in section 500, simple imprisonment for up to two years or fine or with both.
As far as defamation under tort law is concerned, as a general rule, the focus is on libel (i.e., written defamation) and
not on slander (i.e., spoken defamation). In order to establish that a statement is libelous, it must be proved that it is
(i) false, (ii) written; (iii) defamatory, and (iv) published.

LEADING CASE LAWS

Shreya Singhal v. Union of India
Subramanian Swamy v. Union of India

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