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 😊

DELAY IN COURT PROCEEDINGS -Legal Victimization of Victims

‘A voice has been given to victims of crime by Parliament and the judiciary and that voice needs to be heard,
and if not already heard, it needs to be raised to a higher decibel so that it is clearly heard.’
While holding that ‘victims’ can file appeal without seeking leave to appeal, the Supreme Court has made pertinent
observations about rights of victims of crime. Justice Madan B. Lokur, in his judgment, observed that even today the
rights of an accused far outweigh the rights of the victim of an offence in many respects and there needs to be some
balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both. The judge said
it is necessary to seriously consider giving a hearing to the victim while awarding the sentence to a convict and victim
impact statement or a victim impact assessment must be given due recognition so that an appropriate punishment is
awarded to the convict.
The majority judgment began like this: “The rights of victims of crime is a subject that has, unfortunately, only drawn
sporadic attention of Parliament, the judiciary and civil society. Yet, it has made great progress over the years. It is
our evolving and developing jurisprudence that has made this possible. But we still have a long way to go to bring the
rights of victims of crime to the centre stage and to recognise them as human rights and an important component of
social justice and the rule of law.” He opined that meaningful rights have to be provided to victims, including giving a
hearing to the victim while awarding the sentence to a convict. The bench also emphasised the importance of
rehabilitation of victims and said psycho-social support and counselling to a victim may also become necessary,
depending upon the nature of the offence.
Insta_Legal 2.0

The judge said: “It is possible that in a given case the husband of a young married woman gets killed in a fight or a
violent dispute. How is the young widow expected to look after herself in such circumstances, which could be even
more traumatic if she had a young child? It is true that a victim impact statement or assessment might result in an
appropriate sentence being awarded to the convict, but that would not necessarily result in ‘justice’ to the young widow
- perhaps rehabilitation is more important to her than merely ensuring that the criminal is awarded a life sentence.
There is now a need, therefore, to discuss these issues in the context of social justice and take them forward in the
direction suggested by some significant Reports that we have had occasion to look into and the direction given by
Parliament and judicial pronouncements.”
The bench also said the Parliament also has taken proactive steps like plea bargaining, victim compensation scheme,
and providing them right to appeal. “A considerable amount has been achieved in giving life to the rights of victims of
crime, despite the absence of a cohesive policy. But, as mentioned above, a lot more still needs to be done,” Justice
Lokur said.
Justice Deepak Gupta, in his separate opinion, observed that the pain which the victim of a criminal offence suffers
should be understood by the courts and keeping in view the emerging trends in law, the rights of the victim should not
be trampled. “Victims must be treated with sensitivity, compassion and respect. They also must be permitted to
access justice because it is sometimes found that the investigating and prosecuting agencies do not follow up cases
with the zeal which is required,” he said.

DEVELOPMENT OF ARBITRATION AND MEDIATION REGIME IN INDIA

Alternate Dispute Resolution (herein after as ADR) is necessary as a substitute to existing methods of dispute
resolution such as litigation, conflict, violence and physical fights or rough handling of situations. It is a movement
with a drive from evolving positive approach and attitude towards resolving a dispute.
In India, the law and practice of private and transactional commercial disputes without court intervention can be dated
back to ancient times. Arbitration or mediation as an alternative to dispute resolution by municipal courts has been
prevalent in India from Vedic times.

Brief Historical Era

The earliest known treatise is the Bhradarnayaka Upanishad, in which various types of arbitral bodies viz (i)
the Puga (ii) the Sreni (iii) the Kula are referred to. These arbitral bodies, known as Panchayats, dealt with variety of
disputes, such as disputes of contractual, matrimonial and even of a criminal nature. The disputants would ordinarily
accept the decision of the panchayat and hence a settlement arrived consequent to conciliation by
the panchayat would be as binding as the decision that was on clear legal obligations.
The Muslim rule in India saw the incorporation of the principles of Muslim law in the Indian culture. Those laws were
systematically compiled in the form of a commentary and came to be known as Hedaya. During Muslim rule, all
Muslims in India were governed by Islamic laws- the Shari’ah as contained in the Hedaya. The Hedaya contains
provisions for arbitration as well.
ADR can be broadly classified into two categories: court-annexed options (Mediation, Conciliation) and community
based dispute resolution mechanism (Lok-Adalat).
The following are the modes of ADR practiced in India:
(i) Arbitration
(ii) Mediation
(iii) Conciliation
(iv) Negotiation
(v) Lok Adalat

Section 89 of the Civil Procedure Code, 1908 provides that opportunity to the people, if it appears to court there exist
elements of settlement outside the court then court formulate the terms of the possible settlement and refer the same
for: Arbitration, Conciliation, Mediation or Lok Adalat. The Acts which deal with Alternative Dispute Resolution are
Arbitration and Conciliation Act, 1996 and The Legal Services Authority Act, 1987

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DIVORCE AND JUDICIAL SEPARATION

JUDICIAL SEPARATION
Either party to the marriage, whether solemnized before or after commencement of the Hindu Marriage Act, 1955 can
under Section 10 of the Act file a petition for judicial separation.
After a decree is passed in favor of the parties, they are not bound to cohabit with each other. Some matrimonial
rights and obligation, however, continue to subsist. They cannot remarry during the period of separation. They are at
liberty to live separately from each other. Rights and obligations remain suspended during the period of separation.

DIVORCE
 In case of divorce, parties cease to be husband and wife. Divorce puts an end to the marriage and all mutual rights,
and obligations stand terminated. The parties are free to marry again.
 Judicial Separation is a step prior to a divorce. The purpose of judicial separation is to provide an opportunity to the
parties to reconcile their difference.
 The grounds for divorce are mentioned under Section 13(1). The grounds of divorce and judicial separation are the
same. Apart from these grounds, the wife may seek divorce on additional grounds.

Grounds for Divorce and Judicial Separation

Adultery: If other spouse had a voluntary sexual intercourse with any person other than his or her spouse after
solemnization of marriage.
Cruelty: If after solemnization of marriage, one of the spouse treats the other with cruelty.
Desertion: If the other party has deserted the spouse for a continuous period of 2 years without any reasonable
ground immediately preceding the presentation of the petition.
Conversion: If one of the spouses has ceased to be a Hindu.
Insanity: If the other party is of unsound mind or has been suffering continuously from mental disorder of such a kind
and to such an extent that the petitioner cannot live with the other party.
Leprosy: If the other party has been suffering from a virulent and incurable form of leprosy.
Venereal disease: If the other party has been suffering from venereal disease in a communicable form.
Renounced the world: If the other spouse has renounced the world by entering any religious order.
Has not been heard alive for seven years.

Difference between Divorce and Judicial Separation

Judicial Separation Divorce

Can file a petition at any time post marriage.
Only one stage of judgment. If grounds are
satisfied, decree granted.
Temporary suspension of marriage.
Cannot remarry after the passage of decree.
It is a ground for divorce.
A single instance of adultery sufficient for Judicial
Sep.
The possibility of reconciliation.
Can file only after completion of one year of
marriage.
Judgement is a two-step process. First
reconciliation, then divorce.
Brings marriage to an end.
Can remarry once decree in favor of divorce is
passed.
Living in an adulterous relationship necessary.
-
No possibility of reconciliation.

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DOCTRINE OF LAST OPPORTUNITY

The Rule of Last Opportunity or the Doctrine of Last Clear chance which states that irrespective of the acts of the
other, he who has the last opportunity or the last chance to avoid the accident or the damage will be held responsible
comes within the jurisdictions of Contributory Negligence.
The landmark judgment in the Rule of Last Opportunity was in Davies v. Mann in 1842 where this doctrine took
complete shape when it was held by Justice Baron Parke that the damages that occurred must be borne by the
person who had the last opportunity to avoid the incident and prevent the damage. There cannot be any recovery
claim for the damage by plaintiff if the immediate action before the incident was directly in control of the plaintiff.

Rule of Last Opportunity in India

In India the Rule of Last Opportunity serves more as a defense in cases of contributory negligence to the extent that
the plaintiff is at fault. Justice Bhagwati in M.C Mehta v. Union of India observed that: “We have to evolve new
principles and lay down new norms which will adequately deal with new judicial thinking to be constructed by reference
to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive
light from whatever source it comes but we have to build our own jurisprudence.”

DOCTRINE OF RAREST OF THE RARE CASE

The Doctrine of Rarest of Rare was established in the case of Bacchan v. State of Punjab. The Supreme Court, in
this case, endeavored to cut out a doctrine particularly for offences culpable with death to decrease the ambiguity for
courts regarding when to go for the highest punishment of the land. By the majority of 4 to 1, the constitutionality of
death penalty was upheld by the Supreme Court and a principle was laid down that death penalty must be surrounded
only in the “rarest of rare cases.

What is Doctrine of Rarest of the Rare Case?

In the Macchi Singh case, the court laid down certain criteria for assessing when a case could fall under the ambit
of rarest of rare. The criteria are analyzed as below:
1. Manner of commission of murder – When the murder is committed in an extremely brutal, ridiculous, diabolical,
revolting, or reprehensible manner so as to awaken intense and extreme indignation of the community; for instance,
a. When the victim’s house is set on fire with the intention to bake him alive.
b. When the victim is tortured to inhuman acts in order to bring about his/her death.
c. When the body of the victim is mutilated or cut in pieces in a brutal manner.

2. Motive for the commission of murder – When total depravity and cruelty are the motives behind a murder; for instance,
a. A hired killer committing murder merely for the sake of a monetary reward.
b. A cold-blooded murder incorporating a thoughtful design in order to get control to inherit property or for any other
selfish gains.
3. Socially abhorrent nature of the crime – When a murder of a person belonging to one of the backward classes is
committed. Cases of bride burning, famously known as dowry deaths, are also covered in this.
4. Magnitude of the crime – When the proportion of the crime is massive, for instance, in cases of multiple murders.
5. Personality of victim of murder – When the murder victim is an innocent child, a helpless woman or person (due to
old age or infirmity), a public figure, etc.
The principle of ‘rarest of rare’ can be divided into parts:-
a. Aggravating circumstances
b. Mitigating circumstances

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