Roll No.

R760218024
SAP ID. 500070320

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

End Semester Examination, July 2020
Open Book – Through Blackboard Learning Management System

Course: Jurisprudence…………………….. Semester: IV …………………..

Programme: BBA-LLB., (Corporate Laws)………………………………… Course Code-LLBL203

Time: 03 hrs. Max. Marks: 100

Instructions:
As this examination is in open-book format, the students are expected to demonstrate a very high degree of
Academic Integrity and not copy contents from resources referred. Instructors would look for
understanding of the concept by the students and any similarity found from resources online/ offline shall
be penalized in terms of deduction of marks and even cancellation of paper in requisite cases. The online
examination committee of the School would also look for similarity of two answer scripts and if answer
scripts of two or more students are found similar, both the answer scripts shall be treated as copied and
lead to cancellation of the paper. In view of the aforesaid points, the students are warned that they should desist
from using any unfair means.

All Questions are Compulsory

Answer each question in not more than 500 words

S. No. Marks CO

1 “In determining a nation’s rank in political civilization, no test is more decisive than
the degree in which justice as defined by the law is actually realized in its a nation’s
rank in political civilization”. However, in the scenario of Covid-19, judicial
administration of our country has affected drastically, because, the administration of
justice implies the maintenance of rights and in the prevailing conditions rights of
people, particularly vulnerable group has been violated to a great extent. Increasing 20(10+
rate of domestic violence and child abuse is a major challenge. 1
10)
a) In the given situation, how the administration of Justice can be
prevailed? Analyze from jurisprudential perspective.
b) To curb the crime against women and children, which source of law
would be effective and why? Present your reasoning.

Ans.
A). It is true that a nation’s rank in political civilization is judged by its effectiveness
of administration of justice, and its also true that the current rise of covid-19, judicial
administration of our country has been affected drastically, the effectiveness and
 efficiency of our judicial administration has taken a serious hit, courts are not
functioning in their maximum capacity, thus leading to a delay in providing justice to
the concerned persons, various jurists have also emphasised on the importance of
justice in a society, Salmond and Roscoe Pound are few to name, Salmond was of
the belief that administration of justice has to be done by the state, Roscoe Pound
believed that court has to be the administrator of justice, he said every state has 2
main functions which are, a) to prevent a war from happening b) Proper
administration of justice .
If a state fails to achieve these 2 functions then it is not a state,
A state majorliy focuses on physical sanctions to curb the crimes rates, a lot of
countries also uses social sanctions, like in our country, social justice is present in
Articles 14(equality before law), 15(prohibition of discrimination on the grounds of
religion, race, caste, sex or place of birth), 16(equality of opportunity in matters of
public employment) etc of the constitution, but due this pandemic, in my opinion
social justice isn’t being recognized properly, so for justice to prevail, Our country
should focus more on how to increase the effectiveness of social justice, as the
concept of social justice aims to uplift the underprivileged section of the society.

B). To curb the crime against women and children, Legislation as a Source of Law
would be effective, Judicial Legislation, ” According to Austin, There can be no law
without a legislative act. the word 'legislation' means the 'making of law', The importance
of legislation as a source of law can be measured from the fact that it is backed by the
authority of the sovereign, and it is directly enacted and recognised by the State. The
expression 'legislation' has been used in various senses. It includes every method of law-
making. In the strict sense it means laws enacted by the sovereign or any other person or
institution authorised by him, The law makers should make more laws that are centric
towards protection of women and child, as should not pay much attention to customs
which are biased towards male dominance, stricter laws with deterrent would surely help
in curbing the crimes against women and children.

2 Suppose in a State, majority of the people (80% of the population) consume liquor
and are addicted to it. Due to this, family, institution and society as a whole are
severely affected and the habit of consuming liquor turned as a great evil to the State.
Government wants to regulate this behaviour through legal measures and in
pursuance of that decides to enact to enact Liquor Consumption Prohibition Act,
2030.

a) Discuss the possibility of the success of proposed Act keeping in mind

20 2
any two schools of Jurisprudence.

OR

b) Evaluate this law from Savigny’s point of view and locate the volks geist
in this regard. Identify whether the law is contrary to volks geist or the
volks geist is contrary to common will of the society.

Ans. A). Sociological school of jurisprudence

This school focuses on society not individuals, according to them mechanical way of
studying wont work, we need to emphasise on societies need, it gives more stress on
functional aspect of law rather than its abstract contents.

Jurist: Ihering
 Law is a result of constant struggle, not spontaneoulsy
 Law is to serve a social ultimate end, is social purpose and not individual
interest
 Law alone isn’t a mean to control the society, there are other conditions
aswell

Jurist: Ehrlich
 Laws found in formal legal sources gives only an inadequate picture of what
goes on in society
 Formal legal source does not reflect the norms and values that govern life
 There will always be an inevitable gap between formal law and actual
behaviour
 He also termed “Living Law”, it is the law which dominates the social life
even though it has not been promulgated by courts

In this situation if we apply the thinking of this school, then this law should
not be passed as it is against the majority of the society

ANALYTICAL SCHOOL OF JURISPRUDENCE

Analytical school of jurisprudence is known by different names like positive

school or positivism law because the exponents of this school are concerned
neither with the past nor with the future but with the law as it exists i.e. law
as it is. John Austin was the founder of the analytical school of jurisprudence;
hence it is also known as Austinian School. The chief supporter of this school
is Bentham Austin, Holland, Salmond, Hart and others.
Austin defined law as a rule laid down for the guidance of an intelligent
being by an intelligent being having power over him. Austin defines law in
two parts: Proper Law and Improper Law. Then again proper law is divided
into two parts: Firstly, the law set by God to man and Secondly, laws made
by man for man. Human law is divided into two heads: Positive Law and
Positive Morality. These positive laws are set by political superiors as such or
set by the man not acting as political superiors but acting in pursuance of
legal rights conferred by the political superiors. Only these laws are the
proper subject matter of jurisprudence. According to Austin, the law is the
command of the sovereign imposing a duty which is enforceable by sanction.
The study and analysis of positive law are based upon the law which is
strictly applied by political superiors to political inferiors.
The basic features of Command theory are:
• Command.
• Duty
• Sanction.
• Sovereignty.

BENTHAM
 Bentham theory is called “Utilitarian Individualism”

He believed that every law may be considered in eight different as:

• Source- law is the will of the sovereign.
• Subject- person or thing.
• Object- act, situation, forbearance.
• Extent- law covers a portion of land on which act is done.
• Aspect- may be directive or sanctioned.
• Force- to produce the effect.
• Remedial state appendages- something attached with the state. •
Expression- of will.

If we apply thinking of this school in the above case study then the concerned
law will pass, as it the command of sovereign to make the law and others
don’t have any say in that

3 “Law should be uniform and applicable to all times and places. and it must be
pure and free from ethics, politics, history and sociology”

a) Identify and give a detailed overview of the School of Law which the
author has referred to in the above paragraph 20
(10+10 3
)
b) Discuss about any one Jurists’ view from this school of law and
applicability of this school in the Indian context

Ans. A). Law should be uniform and applicable to all times and places. and it must be
pure and free from ethics, politics, history and sociology” The author which has been
referred to is “Kelsen” and the school of law which has been referred to is
“Analytical School of Jurisprudence” also called as Positive school of law, This
school of law is concerned with law as it as, it is not concerned with past or future, It
is also not concerned with what law ought to be or what law is. Few important points
are

1. Command of the sovereign.

2. Emphasis on legislation as the source of low.
3. The most important aspect of law is its relation to
the state
.
They treat law as a command from the sovereign, namely, the State. This school is
therefore, also called the imperative school. The jurists of this school are neither
concerned with the past of the law nor with the future of it, but they confine
themselves to the study of law as it actually exists i.e. It is for this reason that this
school is also termed as the Positive School of Jurisprudence, It seeks to define all
laws, classify all laws, discover essential features of every law .It mainly aims at
reconstructing a system by analyzing legal concept on the basis of observation and
comparison by reducing law into a logical way. Such an approach towards law is
described Analytical Jurisprudence.
B). Jurist: John Austin (founder of this school)
According to Austin was, “Law is a command of the sovereign backed
by a sanction.”

Command: Commands are expressions of desire given by superiors

(sovereign) to inferiors (general public). 

Sovereign: A sovereign is any person or body of person, which

makes the laws

Sanction: is the punishment given for disobeying the law.

Austin gave the concept of “ law properly so called” as distinguished (from other
laws which he described as “laws improperly so called” which lack force or sanction
of the state.

Characteristics of sovereign:

1. Should be individual or body

2. Should receive obedience from the society
He accepts that there are 3 types of laws which are not
command but may be included within the preview of law, they
are:
1. Declaratory laws
2. Laws of repeal
3. Law of imperfect obligation, as there is are no sanctions

Criticism
1. Did not support customs
2. No place for judge made laws
3. No place for international laws
4. Command was over emphasized
5. Relation between law and morality was ignored
6. No attention to others factors except sanctions

 Austin’s theory has applicability in modern Indian

political and legal society.
1.   Presumption about the subjects
Austin’s theory of sovereignty presumes that people
will exactly obey what the sovereign will command
which is not true in the present scenario in India,
 Also, Austin’s theory presumes that people are perfectly educated
politically. But that is not true in the modern scenario. In India
sovereign isn’t respected completely, there are always protests going
 against the sovereign.

2. Doesn’t give room to common law other law-

making bodies

According to Austin, only those commands that are given by a political

superior i.e. sovereign are laws the real sense. He has tried to define
the law from the sources of its origin than its functions. Though, there
is a subtle acceptance of law made by judges (precedents) unless
except it goes against the laws made by the sovereign but it is not
appropriate in any sense. In India, Supreme Court is the safeguard of
the constitution and it has the power to declare any legislation as void
if it contravenes any of the provisions of the constitution and thus
protects the fundamental rights of the people of the country. But
according to Austin, courts/judges are the mere the subordinate
sources of law and they have to function within the parameters set by
the sovereign. This isn’t possible in India, as judiciary is well
respected in our country and it plays a major role.

3. Ignorance of human elements and the

fundamental values of the constitution

Austin’s theory has totally ignored the values and

ethics like Liberty of thoughts and beliefs, Equality of
status, etc which are mentioned in the preamble and
are the fundamentals of the Indian constitution.

4. Absolute, unrestricted and indivisible powers to

sovereign
According to him only sovereign should make the law, but this isn’t
applicable in Indian context as, In Golak Nath v. State of Punjab, it
was clearly laid down that separation of power is uncompromisable
provision of the constitution

Thus in conclusion, we can say that Austin’s theory is not quite

relevant to Indian context

20 4
4 Decide the Given problems: (10+10
 a) A testator dies leaving behind his property for his wife (B) for her lifetime
and on her death to X with a condition that he should survive B, but if X dies
during the lifetime of B the property shall be transferred to Y.
Explain the kind of ownership vested in X and Y.
)
b) A boy found a purse-containing bundle of banknotes on the floor of a shop.
He took all the reasonable steps to find the owner of the purse even though
the owner could not be found
Decide on the boys’ claim of possession

Ans.
A.) The kind of ownership vested in X and Y is Vested and contingent
ownership,

Vested Ownership( For X)

1. An estate is said to be vested in ownership when it gives a present right to the
immediate possession and ownership of the property. While an estate which gives a
present right to the further possession of property is said to be “vested interest”.
2. In a vested interest, the transferee’s is already perfect.
3. The transferee owns the right absolutely.
4. The vested interest is heritable.
5. A vested interest is not defeated by the death of the transferee before the
obtains possession. The property passes to his heirs.
6. When an interest is vested, the transfer is complete and the transferee
acquires all rights of a full owner.
7. It does not depend upon the fulfilment of any condition. It creates an
immediate right through the enjoyment may be postponed to a future date.
8. The ownership is absolute.
9. The investiture fact from which a person derives the right is complete.

Contingent Ownership( for Y)

1. Contingent is that which awaits or depends on the happening of an event.
2. In a contingent interest, the title is not yet perfect. But it may become perfect.
If happen certain condition annexed to the deed.
3. The transferee owns it merely conditionally.
4. The contingent interest is not heritable.
5. A contingent interest is defeated by the death of the transferee before he
obtains possession.
6. When an interest is contingent, the transfer is not complete.
7. It is solely depended upon the fulfilment of the condition so that if the
condition is not fulfilled, the property would not be passed.
8. The ownership is merely conditional.
9. The investiture fact from which a person derives the right is incomplete.

B.) Boys claim of possession:

 Every state has laws requiring the return of money or property if it is possible
to identify the owner. As a result, if you find a wallet full of cash and an ID,
you cannot legally pocket the cash because the owner is recognizable. The
same holds true for a bank envelope full of money, a purse, or even an
abandoned vehicle. If the owner is not easily identified, most states still
require that you contact local law enforcement and give the money to them
for a period of time to allow the owner the opportunity to claim it. If the
rightful owner fail to surface after a certain period of time, every state's laws
will allow the finder to take the money as his or her own. Doing otherwise is
considered theft,
And in this case, It is mentioned that the boy took all the reasonable steps to
find the owner of the purse, but could not find him, therefore now the purse
would now legally be of the boy.

5 “Certainty of law is a legal myth. It is not proper for judges and lawyers to stick to
the myth of certainty in the name of precedents and codifications. It is their duty to
do some constructive work in every case and not merely follow precedents”. 20 3
Explain the statement with the help of relevant school of law. Why judicial
precedents are an important tool in promoting consistency within the legal
system?     

Ans.
“Certainty of law is a legal myth. It is not proper for judges and lawyers to stick to
the myth of certainty in the name of precedents and codifications. It is their duty to
do some constructive work in every case and not merely follow precedents”.

This statement means that laws should evolve with society from time to time, it
should not be stagnant , for example in India LGBT communities had not rights
before Supreme court acknowledged them and made laws for their safeguard
The school of law which is relevant here is “Realist school of jurisprudence”
According to Gray, "Precedent covers everything said or done, which furnishes a
rule for subsequent practice."
The High Courts in India are bound by the law declared by the Supreme Court.
Decisions of the Supreme Court are binding only so long as they have not been
overruled by the Supreme Court. The decisions of a High Court are binding on all
the courts below it within its jurisdiction
Importance of Judicial Precedents:
Flexibility:
Precedents bring flexibility in the legal system. The Supreme Court of India is not
bound by its own decisions. The rules settled by the Supreme Court in a particular
subject matter remain in force unless they have not been overruled by the Supreme
Court. This system creates a series of checks and balances in the judiciary. Judges
may not write the laws, but it is their job to interpret the law as accurately as possible
in every situation. They mold the law according to the changed conditions and thus
bring flexibility to the law.
Save time of the courts:
Judicial precedents provide great convenience as it reduces the labor of judges and
lawyers. Once the question regarding some specific matter is resolved then it is not
required to re-argue the same question in the future similar cases. That means judges
can spend less time in deliberation because they already have access to the decision
making processes of others. This advantage can even reduce the crime rate to some
extent as it throws light on the consequences for the wrong committed against the
state.

Prevent mistakes:
Precedents guide judges and consequently, they are prevented from committing
errors which they would have committed in the absence of precedents. There is
lesser chance of mistakes when everyone stays on the same page. By deciding cases
on established principles, the confidence of the people on the judiciary is
strengthened.

Consistency and predictability:

Because of the presence of judicial precedents, the lawyers become able to assist
their clients regarding specific subject matter after observing the precedents
prevalent in such field. It provides guarantee that every case will be treated and
decided in a manner that is similar to pass decisions. There is an element of
consistency and predictability that everyone can rely upon it.

Therefore judicial precedents are important tools in promoting consistency within

legal system

I, HRITHIK SHARMA, understand that submitting work that isn’t my own may
result in failure in this paper and I may also be subject to Disciplinary
Proceedings as per the Academic Integrity policy of the University.