CLAT 2022 PG Question Paper

 I. Both lawmen and laymen often ask, ‘What is the law applicable to a given set of facts? The answers to this question differ depending upon the specific jurisdiction to which the given set of facts is linked. Contrary to this, scholars and students of jurisprudence are likely to ask the general question, viz ‘What is Law?’ This question on the philosophy and nature of law supposes that law is a distinctive social-political phenomenon with universal characteristics that can be perceived through philosophical analysis. in such a study, the assumption is that law possesses some universal characteristics.

An analysis of the philosophy of law can be done for different reasons. Apart from a purely intellectual interest in understanding this complex phenomenon known as law, scholars also study the same as a normative social practice that purports to guide human behaviour, giving rise to reasons for action. The primary challenge of the branch of scholarship known as jurisprudence is based on this ‘normative, reason-giving aspect of law’. At the same time, we must understand that law is not the only normative realm in any given society. it is one of the many normative standards such as morality, religion, customs and usages, etiquette, self-regulatory standards within a family or corporation etc. So, it is also essential that we study law on the differences and similarities of the same with these normative standards.

While discerning these connections and contradictions, legal theories often study the content of the norm apart from giving importance to the source. Generally, theoretical studies on the content such as natural lawyers emphasize values such as fairness, justice, liberty etc., as qualifications for the norms to be called laws. They have argued that laws must be in tune with certain principles of inner morality, such as that laws be general, public, prospective, coherent, clear, stable, and practicable are indispensable to law-making. Whereas theories that give prominence to the sources of the norm, such as enactment/command by political institution/authority, do not always emphasize on the content.

Such philosophical analysis of law comprises both explanatory and justificatory aspects. While the explanatory aspect consists of explaining how laws can give rise to reasons and what kinds of reasons are involved. One example of this would be Dworkin’s classification of law as concepts, principles and rules. The aspect of justification concerns whether people ought to comply with the law’s demands. in other words, it is the attempt to explain the moral legitimacy of law and the subjects’ reasons for complying with it.

1. Validity of law resides in the political sovereignty of the maker of that law refers to:

(A)         Legal Positivism                          (B)         Natural Law

(C)         Historical School                        (D)         Sociological School

2. A norm cannot become legally valid unless its content is fair and just in accordance to:

(B)         Natural Law                   (D) Sociological School

(A)         Legal Positivism            (C) Historical School

3. “The falsehood of legal positivism resides in envisaging that the law consists of only rules. However, this is a serious mistake since legal principles partly determine the law in addition to rules. The distinction between rules and principles is a logical one. Rules apply in an ‘all or nothing fashion. ’ If the rule applies to the circumstances, it determines a particular legal outcome. If it does not apply, it is simply irrelevant to the outcome” according to:

(A)         Ronald Dworkin, Taking Rights Seriously,1977

(B)         John Finnis, Natural Law and Natural rights, 1980.

(C)         H.L.A.Hart, the Concept of Law, 1961.

(D)         Raz, Joseph, Legal Principles and the Limits of Law, 1972.

4. Principles requiring that laws be general, public, prospective, coherent, clear, stable, and practicable are indispensable to law-making correspond to:

(A)         Inner Morality

(B)         Method of logic

(C)         Legitimacy and transparency in law making

(D)         Democratic law making

5. ‘I mean simply that history, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future’ opined by:

(A)         Roscoe Pound

(B)         Benjamin Cardozo

(C)         Duguit

(D)         Auguste Comte

6. ‘The life of the law has not been logic: it has been experience’ is stated by:

(A)         Holmes                            (B)         Dworkin

(C)         Cardozo                          (D)         Amartya Sen

II.   A thought-provoking book titled ‘The Morality of Law’ by Lon L. Fuller on moral philosophy insists on a distinction between ‘morality of aspiration’ and ‘morality of duty’. From the view of the morality of aspiration, the human conduct does not bear on mandatory rules but on conceptions of the ‘Good Life’, of ‘what beseems a human being functioning at his best to human capacities’. Because no law can compel a man to live up to the excellence of which he is capable. But for workable standards of judgment, the morality of duty lays down the basic rules without which an ordered society directed towards certain specific goals must fail of its mark. Because the duty ties it very closely to what is ‘rationally discoverable’ and ‘objective’, as contrasted with the morality of aspiration based on subjectivism. However, moralists may differ as to what range of conduct should fall within the respective spheres of duty and the morality of aspirations. “When we are passing a judgment of moral duty, it seems absurd to say that such a duty can in some way flow directly from knowledge of a situation of fact.” As due to the fact that before we conclude ‘that a duty ought to exist’, however well we may understand the facts, by the close connection between understanding a person’s ideals, approval and disapproval. Does this mean that duties are rationally discoverable, and a matter of choice, even if not of ‘ineffable preference’? Presumably not, since when we pass a moral judgment of duty ‘ought’ to exist. It is necessary to distinguish between the accepted morality of a social group and the personal morality of individuals. ‘Duty’ may appear in all of these, but the satisfaction is very often a matter of degree varying from situation to situation. The rule of a morality of duty is necessary for social living. The morality of aspiration provides a general idea of the perfection we ought to acquire it. If we consider the whole range of moral issues, we may imagine a yardstick which begins at the bottom with the most obvious demands of social living and extends upward to the highest reaches of human aspirations. Somewhere along this scale an invisible pointer marks the dividing line where the pressure of duty leaves off and the challenge of excellence begins. The whole field of moral argument is an undeclared war over the location of this pointer. Whom we regard as being moralistic are always trying to inch the pointer upward so as to expand the area of duty and they bludgeon us into a belief that we are duty bound to embrace this pattern of human conduct, instead of making us realize a pattern of life they consider worthy of human nature.

1. Which of the following statements regarding the ‘morality of aspiration’ is untrue?

(A)         The morality of aspiration is based on inevitable rules for ordered social living.

(B)         The morality of aspiration impulses towards the perfection and excellence.

(C)         The law cannot regulate the morality of aspiration because it is subjective in nature.

(D)         The law cannot compel a man to adhere to the best of his human capabilities.

8. The rules for morality of duty command:

(A)         To conduct best to human capacity.

(B)         To conduct necessary for self-survival.

(C)         To conduct equally as others’ conduct.

(D)         To conduct necessary for social living.

9. Consider the statements:

(i)          The moralistic philosophy always strives to encroach into the area of morality of aspiration to bring it as duty for the social living.

(ii)         The moralistic philosophers compel us to embrace the pattern of human conduct, instead of making us realize a pattern of life that is worthy of human nature.

Choose the correct answer from the code given below.

(A)         Both (i) and (ii) are true.

(B)         Both (i) and (ii) are untrue.

(C)         (i) is true and (ii) is untrue.

(D)         (ii) is true and (i) is untrue.

10. Which of the following element is not required for the formation of decision regarding a moral duty?

(A)         Rationality                     (B)         Objectivity

(C)         Subjectivity                    (D)         Knowledge regarding the circumstances

11. The concept of duty as characterized by Lon L. Fuller seems

(A)         Dynamic                          (B)         Static

(C)         Personal                          (D)         Fictional

12. Which of the following statements is not true?

(A)         ‘Morality of duty’ is non-obligatory.

(B)         ‘Morality of duty’ is obligatory.

(C)         Rules of ‘morality of aspiration’ are a challenge to human conduct.

(D)         Human excellence is the end of ‘morality of aspiration’.

III.          The present system of appointments as envisaged by the Constitution and as elucidated in the Collegium system makes it clear that the first step is a recommendation from Collegium of four senior-most judges and presided over by the Chief Justice. This process in turn requires wide consultation by the Chief Justice of the High Court to identify the requisite talent, so as to make the recommendations. Contrary to some portrayed beliefs as if this is an extremely subjective system, every Chief Justice is actually required to solicit names from different sources whether it be sitting judges, retired judges, or prominent members of the Bar. it is from this pool of talent that he selects, after a discussion in the collegium, the most suitable candidates. It is thus of utmost importance that the flow of recommendations continues for the appointment process to work successfully. The current situation of vacancies, especially in some of the larger courts with very few recommendations in the pipeline seems to be the genesis of this problem. The data placed before us, as drawn from the National Judicial Data Grid (NJDG) shows that five (5) High Courts alone are responsible for 54% of the pendency of over 57,51,312 cases i.e., the High Courts of Allahabad, Punjab & Haryana, Madras, Bombay, and Rajasthan. The Madras High Court has among the highest arrears in the country of 5.8 lakh cases despite having fewer vacancies than most other High Courts (i.e., 7%). This does not take away from the requirement of appointing ad hoc Judges but supports the view that even if the existing vacancies are few, a situation may arise requiring the expertise of experienced Judges to be appointed as ad hoc Judges.

13. The above excerpt has been taken from which of the following judgments, where the Supreme Court of India sought to activate a dormant provision of the Constitution of india for the appointment of ad hoc Judges to deal with the unprecedented backlog of cases pending before the High Courts ?

(A)         Devendra Kumar Saxena v. Central Bureau of investigation (CBI), 2021 SCC OnLine SC 330.

(B)         M.K. Ranjitsinh v. Union of india, 2021 SCC OnLine SC 326.

(C)         Lok Prahari through its General Secretary S.N. Shukla, IAS (Retd.) v. Union of india, 2021 SCC OnLine SC 333.

(D)         Justice V. Eswaraiah (Retd.) v. Union of India, 2021 SCC OnLine SC 310.

14. Which of the following dormant provision of the Constitution of india has been invoked by the Supreme Court of india for the appointment of ad hoc Judges to deal with the backlog of cases before the High Courts?

(A)         Article 224A                   (B)         Article 217

(C)         Article 224                      (D)         Article 217A

15. in Supreme Court Advocates on Record Association v. Union of India, (2016) 5 SCC 1, the Supreme Court of india, by a_____ majority, restored the collegium system of appointment of judges by holding that the National Judicial Appointments Commission Act, 2014 is ultra vires the Constitution of india.

(A)         3:2                                    (B)         4:1

(C)         6:1                                    (D)         4:3

16. In which of the following cases, the Supreme Court of India observed that for appointment of a retired Judge as an ad hoc judge, the consent of such retired Judge is a pre-requisite for his/her appointment as an ad hoc judge?

(A)         Ashok Tanwar v. State of Himachal Pradesh, (2005) 2 SCC 104.

(B)         Supreme Court Advocates on Record Association v. Union of india, (2016) 5 SCC 1.

(C)         Union of india v. Sankal Chand and Himatlal Sheth, (1977) 4 SCC 193.

(D)         Krishan Gopal v. Shri Prakash Chandra, (1974) 1 SCC 128.

17. In which of the following reports the Law Commission of india advocated for appointment of retired judges as ad-hoc judges in the interest of clearing backlogs of cases in the High Courts?

(A)         One Hundred Eighty Eighth Report on proposals for Constitution of Hi-Tech Fast-Track Commercial Divisions in High Courts (2003).

(B)         Fourteenth Report on Reforms in Judicial Administration (1958).

(C)         One Twentieth Report on Manpower Planning in Judiciary: A Blueprint (1987).

(D)         One Hundred Eighteenth Report on Method of Appointments to Subordinate Courts/ Subordinate Judiciary (1986).

18. Which of the following statements is true regarding the origin of the Collegium system for appointment of judges?

(A)         Article 124A of the Constitution of India provides for the establishment of the collegium system.

(B)         The Judicial Appointments (Collegium System) Act, 1999 provides for the establishment of the collegium system.

(C)         The Constitution of India does not provide for the establishment of the collegium system.

(D)         The National Judicial Appointments Commission supplements the collegium system for appointment of judges.