Uncategorized

CLAT PG 2020 Answer Key: Five Objections and Two Others

The CLAT PG 2020 answer key is out. The time period of raising objections is over. Now when CLAT sits over the objections raised by the candidates to check their veracity, here is my take on seven questions. Out of the seven, in five instances, CLAT provisional answer key is clearly wrong and in two instances, though many candidates have raised objections, CLAT answer key is absolutely correct.

Five Objections

Question number 29

Which of the following is not a tenet of the term Life under Article 21 of the Constitution? 

a) Right to Die with Dignity 

b) Right to Live with Dignity 

c) Freedom of Sexual Orientation 

d) Right to Reputation 

The Answer Key says the correct Option is D, which in my view is wrong.

Paragraph 139 of Subramanian Swamy v Union of India, Ministry of Law and Others may be referred.

139. In Mohd. Arif alias Ashfaq v. Registrar,Supreme Court of India and others133, wherein the majority in the Constitution Bench has observed that the fundamental right to life among all fundamental rights is the most precious to all human beings. The aforementioned authorities clearly state that balancing of fundamental rights is a constitutional necessity. It is the duty of the Court to strike a balance so that the values are sustained. The submission is that continuance of criminal defamation under Section 499 IPC is constitutionally inconceivable as it creates a serious dent in the right to freedom of speech and expression. It is urged that to have defamation as a component of criminal law is an anathema to the idea of free speech which is recognized under the Constitution and, therefore, criminalization of defamation in any form is an unreasonable restriction. We have already held that reputation is an inextricable aspect of right to life under Article 21 of the Constitution and the State in order to sustain and protect the said reputation of an individual has kept the provision under Section 499 IPC alive as a part of law.

Also, paragraph 140 of the same judgement may be referred wherein the court held

140. We are in respectful agreement with the afore said enunciation of law. Reputation being an inherent component of Article 21, we do not think it should be allowed to be sullied solely because another individual can have its freedom. It is not a restriction that has an inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being had to another person’s right to go to Court and state that he has been wronged and abused.

Hence Option D is incorrect.

Catena of judgements in Gian Kaur and Aruna Shanbaug may be referred. Especially paragraph no 19 of Aruna Shanbaugh may be referred wherein the court held that,

19. We have carefully considered paragraphs 24 and 25 in Gian Kaur’s case (supra) and we are of the opinion that all that has been said therein is that the view in Rathinam’s case (supra) that the right to life includes the right to die is not correct. We cannot construe Gian Kaur’s case (supra) to mean anything beyond that. In fact, it has been specifically mentioned in paragraph 25 of the said decision that “the debate even in such cases to permit physician assisted termination of life is inconclusive”. Thus, it is obvious that no final view was expressed in the decision in Gian Kaur’s case beyond what we have mentioned above.

Paragraph 25 of Gian Kaur may be referred. The court held that,

25. A question may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the ‘right to die’ with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. The debate even in such cases to permit physician assisted termination of life is inconclusive. It is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life”.

Paragraph 195 of Common Cause v Union of India may be referred.

195. In view of the aforesaid analysis, we record our conclusions in seriatim: –

(i) A careful and precise perusal of the judgment in Gian Kaur (supra) case reflects the right of a dying man to die with dignity when life is ebbing out, and in the case of a terminally ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.

 The paragraph clearly shows that, right to die with dignity is not an UNQUALIFIED right under Art 21. It constitutes a part of art. 21 only in certain circumstances i.e.

(a)   When life is ebbing out

(b)  Terminally ill persons or persons in PVS can only claim

(c)   There is no hope of recovery for the person

The key phrase is “Accelerating the process of death for reducing the period of suffering”. By this phrase, it accepts the constitutional bench judgment of Gian Kaur when it held Right to life is Right to live with dignity till the end of natural right. All fundamental rights are natural positive rights. Right to Die with dignity cannot be a fundamental right under Art. 21 on all circumstances. Hence Correct option is A.

Question number 34

In which of the following cases the Supreme Court held that Right to Access Internet is protected under Article 19 of the Indian Constitution? 

a) Anuradha Bhasin v. Union of India. 

b) Irtiqa Iqbal v. Union of India 

c) Kapil Sibal v. Union of India. 

d) None of the above. 

The Answer key says the correct option is A.

However, Paragraph 28 of Anuradha Bhasin v Union of India may be perused. The court held that:

28. None of the counsels have argue for declaring the right to access the internet as a fundamental right and therefore we are not expressing any view on the same. We are confining ourselves to declaring that the right to freedom of speech and expression under Article 19(1)(a) and the right to carry on any trade or business under article 19(1)(g) using the medium of internet is constitutionally protected.

So the court has not discussed the question of Right to access internet, rather limited itself to the right to carry on any trade or business using medium of internet.

Hence the correct option should be D.

Question number 53

Consider the following statements:

1. The Constitution does not make CJI the ―Master of Roster

2. The Supreme Court Rules vests in CJI the power of the ―Master of Roster

3. The Constitution of India read with Supreme Court Rules vests in CJI the Power of the ―” Master of Rolls”

4. The Power is neither given by the Constitution not by the Supreme Court Rules. It’s just a convention.

Which of the statement given above is / are correct?

a) 1 and 3 only

b) 2 only

c) 3 and 4 only

d) 1, 3 only

Answer key gives the answer as Option B. However, this is not the correct position of law. A three-bench judgement of the Supreme Court in Shanti Bhushan v Supreme Court 2018 (8) SCC 396 (Master of Roster) case may be perused. In the Para 21 of the said judgement, the Bench speaking through A.K. Sikri J. held that,

(1) The Constitution is silent on the role of the Chief Justice

(2)  The legal position contained in the aforesaid judgements (State of Rajasthan v. Prakash Chand and Campaign for Judicial Accountability and Reforms v. Union of India & Anr,  (2018) 1 SCC referred in Para 18, 19 and 20) is based upon healthy practice and sound conventions which  have been developed over a period of time and stands engrafted in Supreme Court Rules.

From the above two statements the undeniable fact that emerges is: –

The role of Chief Justice as a ‘Master of Roster’ is developed as a part of convention as constitution is silent on his role.

The Supreme Court Rules 2013 may be perused wherein nowhere it is mentioned that the CJI is the Master of the Roster. However, Order VI vests the power of creating division benches to hear matters. [ That’s why in Shanti Bhushan the court held that “stands engrafted in Supreme Court Rules”]. But it has to be borne in mind that the precondition for Statement 2 is the judicial conventions. The keyword is “stands engrafted”. Rules were framed in response to the conventions. Also, Campaign for Judicial Accountability and Reforms v. Union of India & Anr. (2018) 1 SCC be perused where the court held that

 7. The aforesaid position though stated as regards the High Court, we are absolutely certain that the said principle is applicable to the Supreme Court. We are disposed to think so. Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law. We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum.

 If the Supreme Court Rules provided the power of Master of Roster power the CJI, the Shanti Bhushan case would not have arisen at all.

Now the options may be perused. The combinations were so made that, Statement 4 appears only in Option C and correctly reflects the position of law established in Shanti Bhushan case [2018 (8) SCC 396]as well as Campaign for Judicial Accountability and Reforms case.

There are two issues in this line of argument. It may be claimed Master of Rolls is different from Master of Roster. But this claim lacks any currency as Shanti Bhushan case settles it. The second issue is Statement 3 and Statement 4 may appear contradictory to each other. But there is a subtle difference, whereas statement 4 uses the word “given”, Statement 3 uses the word “vests”. As per Collins Dictionary of Law © W.J. Stewart, 2006 “Given” means official documents, issued or executed on a given date. Neither the constitution nor the Supreme Court Rules declare CJI as the Master of Roster.  

On the other hand in Constitutional Law vested rights are those that are so completely and definitely settled in a person that they are not subject to defeat or cancellation by the act of any other private person as per West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. The Constitution by Art. 145 and Supreme Court Rules by Order VI “vest” the power of a Master of Roster to the CJI. And why the vesting has been made, because it has been the convention. The right of Master of Roster is settled in CJI by a join reading of Supreme Court Rules and Constitution of India and it is so because of convention, even though it is not explicitly given by any official document ( Constitution or Supreme Court Rules). Probably the maker of the question wants the most suitable answer among all options. And with the spirit of the Master of Roster judgement and long line of judgements such as {State of Rajasthan v. Prakash Chand [(1998) 1 SCC 1], Campaign for Judicial Accountability and Reforms versus Union of India[2018 (1) SCC 196], Asok Pandey V. Supreme Court of India[2018 (5) SCC 341], and Shanti Bhushan v. Supreme Court of India through its Registrar and another[2018 D (8) SCC 396]}  the correct and most suitable option in C.

Question number 73.

After changing her religion, an adult medical student Bareta got married to a man of her choice. The medical student‘s right to marry was: 

a) A claim 

b) A liberty 

c) A power 

d) A liability 

The answer in the Key is Option A.

The following points may be considered.

(i)             Bareta is an adult. So, she is legally empowered to take her own decision.

(ii)           Bareta changed her religion. Changing her religion is her own volition, i.e. her liberty.

(iii)          Bareta married after changing her religion. Bareta choosing her partner is her liberty. Her partner marrying Bareta is also his liberty. As soon as they got married, they realized their own volition.

(iv)          Had Bareta proposed her partner and her partner rejected the proposal, Bareta could not have any “claim” over her partner’s liberty.

(v)           If the marriage fails and Bareta seeks maintenance, she exercises “Claim”.         

(vi)          Had the partner made the precondition that he would marry Bareta only if she changed her religion, then the question of “Claim” could have arisen. But that part is silent in the question.

Now Shafi Jahan V Asokan  Hadiya case may be referred wherein Chandrachud J. held

The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practice, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme…Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution

Hence, correct option should be Option B.

Question number 74.

The situation for Bareta would change if she were a minor. Her minority would impact on her: 

a) Claim 

b) Liberty 

c) Power 

d) Immunity 

The answer key says Option C.

The Prohibition of Child Marriage Act 2006 may be perused. Section 3 (1) and Section 3(2) may be perused

Section 3(1) says – “Every child marriage, whether solemnized before or after the commencement of this Act, shall be voidable at the option of the contracting party who was a child at the time of the marriage: Provided that a petition for annulling a child marriage by a decree of nullity may be filed in the district court only by a contracting party to the marriage who was a child at the time of the marriage.”

If Bareta was a minor during the time of marriage, she could still use S. 3(1) of the above act, and sue for nullifying the marriage. Her Power is not impacted. Hence Option C cannot be correct.

Similar is the case about claim. Her claim is not impacted. Hence Option A cannot be correct.

Only thing which is not impacted is her Liberty. Despite being a minor she can contract marriage. Hence correct option should be B.

In this question minority is not defined and from the text of the question, minority is construed as below marriageable age. 

Two Others

Question number 9.

Creamy layer concept is applicable to 

a) All reservations 

b) SC ST reservations 

c) OBC reservation 

d) Only horizontal reservation 

The Answer given in the Key is Option C.

Many candidates have raised objection claiming that creamy layer is applicable to all kind of reservation. This argument is unfounded because creamy layer concept is not applicable to Reservation to Persons with disabilities. Similarly, it is not applicable to reservation extended to ex-service man or reservation based on domicile.  It is not applicable to reservation envisaged under Art. 16(1).

Most of the candidates have referred Jarnail Singh v Lacchmi Narain to buttress their claim.The creamy layer concept was developed in Indra Swahney ( a nine judge bench), hence there is no way that this ratio could have been altered by Jarnail Singh ( a five judge bench). In fact, in Jarnail Singh it was of suggestive nature that it should be extended to SC and ST also.  Paragraph 16 of the said judgement is referred.

16. We do not think it necessary to go into whether Parliament may or may not exclude the creamy layer from the Presidential Lists contained under Articles 341 and 342. Even on the assumption that Articles 341 and 342 empower Parliament to exclude the creamy layer from the groups or sub-groups contained within these Lists, it is clear that Constitutional Courts, applying Articles 14 and 16 of the Constitution to exclude the creamy layer cannot be said to be thwarted in this exercise by the fact that persons stated to be within a particular group or sub- group in the Presidential List may be kept out by Parliament on application of the creamy layer principle. 

 In fact, the same issue was raised in Davinder Singh v State of Punjab and was referred to a higher bench. As the issue is unsettled till date, it cannot be said, Jarnail Singh had ordered for classification within the SC and ST. So, the settled position of law at present is that creamy layer is applicable to OBC only. Hence the CLAT answer key is correct.

Question number 96.

The Supreme Court itself admitted in Santosh Kumar Bariyar (2009) that death penalty is imposed arbitrarily or freakishly. The court made a candid admission in saying that there is no uniformity of precedents. In Sangeet (2013), the Court yet again acknowledged that principled sentencing has become judge centric. In Swami Shraddhananda (2008), the Court said, award of death sentence depends on the personal predilection of judges and there is lack of uniformity in capital punishment. Which of the following statements is correct? 

a) Award of Death Penalty depends on law and is given in rarest of rare cases. 

b) Award of Death Penalty depends on personal ideologies of judges. 

c) a) & b) both are correct. 

d) a) is wrong. 

The CLAT answer key is Option B.

Many students have raised objection on the basis that the answer should be Option C. Let’s analyse the Options. Statement under Option B is undoubtedly correct. So it needs to be seen, whether statement under Option A is also correct. The statement has two parts:

(a)Award of death penalty depends on law

(b) Award of death penalty is given in rarest of the rare cases

Undoubtedly part (b) is correct. However, issue lies with part (a).

In State of M.P. v. Bablu Natt, the Supreme Court stated that “[t]he principle governing imposition of punishment would depend upon the facts and circumstances of each case. Similarly,  in Alister Anthony Pareira v. State of Maharashtra, the Court held that:

[s]entencing is an important task in the matters of crime.  One of the prime objectives of the criminal law is imposition of [an] appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of [the] crime and the manner in which the crime is done.  There is no straitjacket formula for sentencing an accused on proof of crime.  The courts have evolved certain principles: [the] twin objective of the sentencing policy is deterrence and correction.  What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.

In Santosh Kumar Bariyar v. State of Maharashtra Justice S B Sinha in his majority judgment has imposed a duty upon the court that “appropriate punishment is to be determined on a case-by-case basis. The death sentence is not to be awarded save in the `rarest of rare’ case where reform is not possible.”

Hence, quantum of punishment, especially death sentence, depends on the facts of each case and not on law. Hence, CLAT Answer key gives correct answer.

It is expected the objections raised by different stake holders will be given enough emphasis before arriving at any result.

 

Standard

3 thoughts on “CLAT PG 2020 Answer Key: Five Objections and Two Others

  1. This is a fantastic article. I came across this article through a Instagram link shared by a college friend. I am not a lawyer but I have read the article as a writer. From the standpoint of argumentation and elucidation, this article is a must read for everyone who wants to write polemic pieces. Great reading it!

    Like

Leave a Reply to GVS Prasad Cancel reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s