MOOT COURT
Q. 1. What do you mean by “Moot Court”. Distinguish a Moot Court with an actual Court?
(OR)
What do you understand by Moot Court? Explain its importance in the present context and differentiate between Moot Court and Real Court.
Ans. A Moot Court is an artificial Court. Moot Courts are organised in the law faculty of a university or law department of a college for practical training of law students. Law students get opportunity of practical training of advocacy during their studentship in a law college or law faculty of a university. Through Moot Courts, practical training of advocacy is provided to law students and that becomes useful to them when they enter in law profession after completing their law study, ie, after they obtain the law-degree from a university.
In Oxford University English Dictionary, the term “moot” has been explained to mean “an assembly of all students for discussion of hypothetical cases for practice”. It is an assembly to discuss a moot point, a question, a matter about which there may be agreement or disagreement.
There are, however, various objects and purposes of conducting Moot Courts in law colleges or law faculties of the universities in respect of imparting practical training to the students of LL.B., which are described as follows:
(1) to help and cultivate self-possession, fluency, clarity of enumeration, practice of Court-procedure, experience in the art of persuasion and presentation of cases:
(2) to develop self-confidence to speak frankly and freely before the audience before they attend the Courts;
(3) to impart occasions to law-students to gain knowledge and experience of examining and cross-examining the witnesses;
(4) to prepare them for Court-practice and for preparation of brief and arguments of law points involved in the cases,
(5) to obtain knowledge of Court’s procedure and to observe professional ethics,
(6) to get opportunity to become counsel for the plaintiff as well as defendants on different occasion, besides getting opportunity of conducting cases as judges of the Moot Courts. In this way, law-students participate in Moot Courts in different capacities of lawyering
In Moots Courts, often imaginary cases are taken to be disputed. The law students are divided into groups to represent the two sides of the cases. One group is assigned all aspects of the case of one party, while the other group represents the opposite party. The imaginary cases may be either civil or criminal. It may be either for presenting a writ petition or for presenting an application for claiming reliefs through Courts. The law-students have to tackle all aspects of work of lawyering in the cases before the Moot Courts.
In civil cases, one party has to present the plaint before the Court of competent jurisdiction. The concerned party has to give description of the Court before which he has to file the plaint. The names, description and places of residence of the plaintiffs and defendants are given in the plaint. He has to state therein the facts of the case, causes of action and the reliefs claimed and about the Court fees paid, etc. The provisions of Code of Civil Procedure are followed for filing a civil case in a Court of law.
After the plaint is filed, the opposite party is informed and is given a notice to file written statement either for accepting or denying the facts of the plaint. The written statement is prepared after examining the details of the plaint in accordance with the procedure contained in Order VIII of Civil Procedure Code.
Drafting of plaints is an art and it must describe clearly the facts of the case. The plaint must be divided into paragraphs and it must narrate the sequence of events date-wise. Under the plaint, the causes of action, the places and the dates of causes of action, the valuation of the cases and the reliefs claimed must be clearly mentioned. The arguments of the case must be prepared clearly because it is the touchstone to obtain success in the case. So, the arguments are to be prepared to satisfy the judge about the veracity of the plaint. The mooters have to prepare the arguments in accordance with the pleadings of the parties. The admission and denial of the opposite party and the witnesses have to be kept in mind while arguing the cases. The strongest points in favour of their parties must be kept in mind by the mooters on behalf of their clients.
The above matters must be learnt by the mooters while attending the Moot Court to acquire the aptitude of successful lawyering. The mooters have to argue the law, but not the facts, as involved in the imaginary cases before them. The presentation of cases before the Moot Courts depends upon the intellectual ability of the mooters.
Difference between Moot Court and Real Court
The differences between a Moot Court and a real Court are as follows :
(1) A Moot Court is organised for practical training of law- students, while a real Court is a Court established by the State to exercise real judicial functions.
(2) The Moot Court is organised to decide imaginary cases by the law students themselves, while the actual Court is a real Court established by the State to decide real cases by the presiding officer of the Court, i.e., the judges.
(3) A Moot Court does not exercise any judicial or quasi- judicial power, while Real Courts have judicial power to adjudicate the rights of the parties to provide them justice according to law.
(4) In Moot Courts, imaginary cases are decided while in real Courts, actual cases are brought for adjudication by judges appointed by the State.
(5) In real Courts, cases are decided in judicial manner, while in Moot Courts although legal provisions are employed to decide the cases but that has no judicial sanctity or importance, in practice.
(6) In real Courts, remedy is provided by the Judges to the affected parties which they (parties) avail at their will, but in Moot Courts no any relief is provided to the parties, as all the reliefs are fictitious.
(7) Real Courts are conducted according to the procedure established by the law of the state. Its proceedings and decisions are binding on the parties, while the decisions of Moot Courts have no power to bind the parties.
(8) According to Section 20 of the Indian Penal Code, the words, “Court of justice” means a judge who is empowered by law to act judicially alone or a body of judges who is empowered by law to act judicially”. But the words “Moot Courts” have not been defined in any statute, as they are purely imaginary Courts and have no legal authority or sanctity.
(9) The Judges of superior Courts like those of Supreme Court and High Courts are appointed by the President of India and the judges of subordinate Courts are appointed by the Governors of the States. But in Moot Courts, judges are appointed by the law-students themselves to decide the imaginary cases presented by them for gaining practical training of lawyering.
(10) The decisions of real Courts are binding upon the parties concerned, while the decisions of Moot Court have no legal sanction as they are purely imaginary, and there is none on whom they may be imposed.
(11) The real Courts are real Courts which are established on permanent basis by the authority of the State, but Moot Courts are artificial Courts arranged only for the time- being to acquaint the law students about all aspects of lawyering and professional ethics for their training before joining bar or for entering legal profession.
To sum up, Moot Courts are imaginary Courts meant for law- students, while actual Courts are real Courts for liquidation of grievances or disputes of people of the State.
Q. 1A. Explain the advantages of Moot Court?
Ans. There are so many advantages of Moot Court, like-
(1) Training in Moot Court is imperative to make the law students good in speaking and articulation.
(2) Moot Court is important helping to young law students to be articulate.
(3) Moot Court gives the young law students to learn the ticklish tenacities, interstices on inflections both counsels and Judges follow the punctilios of court practice, procedure and conduct.
(4) Moot Court inculate the habit in the law students to read the relevant statutes and cases in detail.
(5) Moot Court provides practical experience and encourage a growth in the confidence of the law students.
(6) Moot Court provides practical approaches to legal education to nurture the skills of articulation and advocacy.
(7) Moot Court help the law students to gain experience in public speaking, advocacy, legal drafting and legal research techniques.
Q. 2. Moot Court is a rehearsal for the real Court. Do you agree with this view. Discuss.
OR
Explain the meaning of Moot Court. Discuss the object and importance of organising and conducting Moot Court.
Ans. Before ascertaining the fact that a Moot Court is a rehearsal for the real Court, we have to understand the real concept, meaning and scope of a Moot Court. Mooting means assembling of the law-students and a Moot Court means an artificial Court. Mooting is a kind of debate. It enhances the confidence of the law-students to conduct cases in a Court of law for their future career of legal profession. According to Chamber’s dictionary, “Mooting” means discussion by law-students of hypothetical case. The moot point means an undecided or disputed point.
To be successful as a lawyer, the law-students are required to have proper and adequate knowledge of legal principles and procedure. The law-students are required to have knowledge of presentation of legal documents. They should have the knowledge of how to appear before a Court of law. They are required to be well-versed with professional ethics. They should learn the court’s manners and behaviour. And above all these, the law-students are required to have full and complete training of lawyering.
It must, therefore, be noted that the object of arranging Moot Court is to provide legal training to law-students before they enter legal profession. When a Moot Court is arranged in a law-college or law faculty of a university the law-students are divided into two groups. One group is asked to take up lawyering on behalf of the plaintiff while the other group is required to take up the side of the defendant. The law-students are required to tackle all aspects of lawyering in the cases before the Moot Court.
Moot Court should not be taken as mere rites and rituals by law schools in India. Moot Court train law students in law schools to think like a lawyer and producer to be a lawyer. Moot tend to make legal eagles as architects and not as masons of legal practice in legal profession. Moot Court makes the law students to be legal eagles and not legal vultures. Moot Court should not be conceded as an extra-curricular activity, but rather be conceded as a regular feature of legal curricular activity.
In a Moot Court, the law-students are taught all aspects of lawyering of both, the civil and criminal cases. In a civil case, one group of students has to present the plaint before the Court. The concerned group has to give description of the court before which, he has to file the suit. The names, description and places of residences of the plaintiffs and defendants are to be given in the plaint. He has to state therein the facts, causes of action and the reliefs claimed and also the Court fees paid. In the description of the case, the details of the property is to be written so as to identify it with boundaries of number of record of settlement or survey in accordance with the provisions of Civil Procedure Code.
After the plaint is filed, the opposite party is informed and given an opportunity to file written statement either for accepting or denying the facts of the plaint. The written statement is prepared after examining the details of the plaint in accordance with the procedure contained in Order VIII of the Civil Procedure Code.
Drafting of a plaint is an art and it must describe clearly the facts of the case. The plaint must be divided into paragraphs and must narrate the sequence of events date-wise. Under the plaint, the cause of action, the place and dates of cause of action, the valuation of the case and the reliefs claimed must be clearly mentioned. The arguments of the case is to be prepared clearly because it is the touchstone to obtain success in the case. So the arguments are to be prepared to satisfy the judge about the veracity of the plaint. The mooters have to prepare the arguments in accordance with the pleadings of the parties. The admission and denial of the opposite party and the witnesses have to be kept in mind while arguing the case. The strongest points in favour of the plaintiff have to be kept in mind by the mooters to present them before the Court to obtain success in the case.
Keeping the above facts in mind, the mooters learn the aptitude of a successful lawyer. The mooters have to argue the law but not the facts as involved in the imaginary case before the Moot Court. The presentation of case and arguments before the Moot Court depends upon the intellectual ability of the mooters.
Similarly, the mooters are taught all aspect of lawyering of criminal cases. In a hypothetical criminal case, the mooters are similarly divided between two groups. One group of students represents the side of the complainant, while the other group represents the side of the defendant and the proceedings are carried on according to the provisions of Criminal Procedure Code.
The mooters are also required to study the tacts of preparation and presentation of cases, preparation of arguments, art of examination of witnesses, adoption of principles of natural justice, rules against bias, departmental bias, policy bias, principles of audi alteram partem, notice, providing reasonable opportunity and giving reasoned decisions, etc. In Moot Court, the teacher in-charge teaches all these aspects of lawyering to the mooters. Besides all these aspects, standard of professional conduct and etiquette for advocates are also taught during the proceedings of the Moot Court.
In this way, it becomes quite clear that the Moot Court is the rehearsal of real Court. Like all the aspects of lawyering of a real Court, in a Moot Court also all aspects of lawyering is taught to the law-students. The teacher-in-charge of the Moot Court proceedings gives full and proper knowledge of lawyering to the law-students when they attend the proceedings of Moot Court. The training of lawyering is given to the law-students while participating in a Moot Court.
Hence, it may be concluded that the object of organising and conducting Moot Court is to teach and train the law-students about the proceedings of a real Court and therefore, the Moot Court is a rehearsal of a real Court.
Q. 3. Write an essay on the procedure to be followed before Central Administrative Tribunals.
Ans. A Central Government employee being aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal, may make an application to the Tribunal for the redressal of his grievance.
Every such application in the prescribed form, shall be accompanied by such documents or any other evidence and by such fee in respect of such application and by such other fees for the service or execution of processes, as may be prescribed by Central Government.
On receipt of such application, the Tribunal, shall if satisfied after such inquiry as it deems necessary, admit the application, oг where not satisfied, the Tribunal shall summarily reject the application after recording its reasons.
A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances. A person shall be deemed to have availed all the remedies available to him under the relevant service rules as to redressal of grievances, if a final order has been made by the Government or any authority or officer or other person competent to pass such order under such rules.
After receipt of final order, an appeal should be made to the Tribunal within one year from the date on which such final order has been made.
After all these procedures, the application shall be entertained by the Tribunal for consideration of adjudication of the matter.
The Tribunal shall decide every application made to it as expeditiously as possible and ordinarily every application shall be decided on perusal of documents and written representations and after hearing such oral arguments as may be advanced.
The Tribunal shall have the same powers as are vested in a civil court under Code of Civil Procedure, while trying a suit in respect of following matters:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavit;
(d) requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witnesses or documents:
(f) reviewing its decisions;
(g) dismissing a representation for default or deciding it as ex parte:
(h) setting aside any order of dismissal of any representation for default or any other order passed by it ex parte, and
(i) any other matter which may be prescribed by the Central Government
The Tribunal is, however, not bound by the strict rules of procedure laid down in the Code of Civil Procedure but shall be guided by the principles of natural justice, while deciding the application of the aggrieved employee.
Q. 4. What is the meaning of Legal Practical Training? State the essential objects and purposes of providing Legal Practical Training.
Ans. The meaning of Legal Practical Training is to arrange moot courts in law colleges or law faculties of the university for providing law-students the skill for participation in the proceedings of law courts, when they actually enter law-profession after obtaining the degree of bachelor of laws from a university. In moot courts all aspects of advocacy is undertaken to provide legal training to the law students.
The term, “moot”, according to Oxford University Dictionary. means “an assembly of law students for discussion of hypothetical cases for practice”. It is an assembly to discuss a moot point a question, a matter about which there may be disagreement or uncertainty. The term “moot” actually means discussion of some matter, question or problem by law students. This aspect must be understood and realized in moot courts while discussing the problems of litigants and arguing their cases.
Besides these, moot courts are meant to prepare law students to debate and discuss social problems from the point of view of reforms for suggesting the Government to legislate legal provisions for the benefit of the society and also to eradicate certain malpractices which are still prevalent in the custom-ridden social structure of the society.
Objects of Legal Practical Training. There are various objects and purposes of conducting moot courts for law students in law colleges and law faculties of the universities, important among them, are as follows-
(1) Participation in moot courts help to cultivate self- possession, fluency, clarity of enunciation, practice of court’s procedure, experience in the art of persuasion and presenting of cases before the court.
(2) Law-students get opportunity of development of self- confidence to speak frankly and freely before the audience when they attend the moot courts.
(3) Moot courts impart occasions to law students to gain knowledge and experience of examination of witnesses.
(4) Moot courts provide practical training of court practice such as, to prepare briefs and actual argument of law points involved in the cases.
(5) Moot courts provide opportunity to law students to employ their originality of thought and in analysis of facts, framing of issues, finding out the law, employing them to the facts of the cases.
(6) Moot courts provide opportunity to law-students to work as amicus curiae for the court.
(7) Through moot courts, law students get opportunity to become counsels for the plaintiffs and defendants on different occasions, besides they get opportunity to work as judges of the moot courts.
In this way, through practical legal training, law students learn all the tacts of advocacy. These tacts serve great purpose when the law students actually enter the law profession in due course.
Q. 5. What is Chamber Practice? Describe the advantages of practical training of law provided by Chamber Practice.
Ans. Chamber practice means the legal training provided by a senior advocate in his chamber to a junior advocate. A junior advocate is a raw hand. He has only a degree in law but practically he is a beginner in advocacy. He has no direction to move. When he attends the chamber of a senior advocate, he is provided lessons of advocacy. He is taught how to study a case, how to search the case-law on the points involved in the cases, the applicability of case law, the writing of plaints and writs and written statements, and their counter affidavits. Preparing briefs of the cases is learnt during chamber practice.
Advocacy is an art and like all other arts some persons have natural aptitude while others have great difficulty in mastering it. In preparing a case, it is always helpful to give a litigant a patient hearing. Though a great deal what the litigant may say, is likely to be irrelevant, still he should be fully heard. His relevant and irrelevant versions, all should be heard patiently by the advocate, then the relevant facts should be noted down. A skilful handling of facts is advocacy. Experienced advocate always try to draw the facts of the case because the facts are the foundation of a case. Judge Cardozo had once observed, “What divides and distracts us in the solution of a legal problem is not so much uncertainty about the law as the uncertainty about the facts which generate the law”.
So, in chamber practice, the lessons on all aspects of practical advocacy are taught by the senior advocate to junior advocates. Chamber practice is the foundation of making a person good advocate. Junior advocates learn about the tenets of good advocacy through the chamber practice. In this way, it is quite clear that chamber practice is essential in making of a good and successful advocate This is why, chamber practice is stressed to junior advocates to attend and learn the art of advocacy from a senior advocate, which serves as a solid base for their legal practice.
Q. 6. Discuss the hierarchy of Courts in India.
Ans. In India, there is a unified judicial system. Indian Constitution has provided an integrated judicial system for all types of cases, whether civil or criminal. Supreme Court of India is the Apex Court under which there are various High Courts, one each in every State with subordinate Courts in each district There is superintendence of High Court over the functioning of subordinate Courts within its jurisdiction. Similarly, all High Courts are under the judicial superintendence of the Supreme Court. Although there is judicial independence of all Courts in the country, but the cases decided by the subordinate Courts, de, the district Courts as the principal Civil Court of original jurisdiction are appealable before their respective High Courts as a matter of right. Further, the cases decided by the High Courts are appealable before the Supreme Court in accordance with the provisions of the Constitution. In this way, there is integrated judiciary in the country, which is functioning quite smoothly As such, the cases decided by subordinate Courts are appealable before its respective High Court. The cases decided by a High Court are appealable before Supreme Court. In other words, subordinate Courts are bound by the decisions of its respective High Court. The High Courts are bound by the decisions of the Supreme Court, but the Supreme Court is not bound by its own decision. It is the hierarchy of Courts in India.
Now we take up the establishment of these Court in the country.
Establishment of Supreme Court
The Supreme Court has been established in the country as the highest Court of appeal. It is on the top of the hierarchy of Courts in India. It is the final Court to interpret the law. It is the protector of fundamental rights of the citizens. It is the highest Court of appeal in civil as well as criminal cases.
(1) According to Article 124 of the Constitution, there shall be a Supreme Court consisting of a Chief Justice, and until Parliament may by law prescribes a large number, not more than seven other Judges. The Parliament may increase this number by law and at present the strength of the Supreme Court is Chief Justice and 33 other Judges. The Constitution does not provide for the minimum number of Judges who will constitute a Bench for hearing cases.
The Judges of the Supreme Court shall be appointed by the President of India with consultation of Judges of the Supreme Court and the High Courts as he deems necessary for the purpose. But in appointing other Judges, the President of India shall always consult the Chief Justice of the Supreme Court.
(2) Every Judge of the Supreme Court shall be appointed by the President of India by warrant under his hand and seal after consultation with such other Judges as he may deem necessary for the purpose who shall hold office until they attain the age of sixty five years:
Provided that:
(a) a Judge may by writing under his hand addressed to the President, resign from his office;
(b) a Judge may be removed from his office in the manner provided in clause (4).
(2-A) The age of a judge of Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.
(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a Citizen of India, and
(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
(b) has been for at least ten years as advocate of a High Court or of two or more such Courts in succession, or
(c) is in the opinion of the President, a distinguished jurist.
(4) A Judge of a Supreme Court shall not be removed from his office except with an order of the President passed by an address by each House of Parliament supported by a majority of total membership of that House and by a majority of not less than two thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the procedure for the presentation of address and for the investigation and proof of the misbehaviour or incapacity of a Judge under Clause (4).
(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the third schedule.
(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any Court or before any authority within the territory of India.
Powers and Jurisdiction of Supreme Court
(a) Supreme Court is a Court of Record. (Article 129)
(b) Supreme Court is a Court having Original Jurisdiction. (Article 131)
(c) Supreme Court holds appellate jurisdiction. (Article 132)
(d) Supreme Court has advisory jurisdiction. (Article 143)
(e) Supreme Court has power of review of its judgments.Article 137)
(f) Supreme Court has power to transfer certain cases.(Article 139-A)
(g) Ancilliary Powers of Supreme Court.
(h) Rule making powers of Supreme Court. (Article 140)
Establishment of High Courts
Article 214 provides that there shall be a High Court for each State. Parliament may by law can establish a common High Court for two or more States and a Union Territory.
High Court stands on the top of the State judiciary. According to Article 217 (1), every Judge of a High Court shall be appointed by the President of India with the consultation of Chief Justice of India and the Governor of the State concerned.
According to Article 217 (2), no person shall be qualified for appointment as a Judge of High Court unless he is a citizen of Ind of India; and
(a) has for at least ten years held a judicial office in the territory of India;
(b) has for at least ten years been an advocate of a High Court or of two or more High Courts in succession.
Jurisdiction of High Court
A High Court has been provided jurisdiction in following matters-
(a) High Court is a Court of Record. (Article 215)
(b) A High Court has general jurisdiction under Article 225 of the Constitution, such as a High Court has been given jurisdiction which it had before the passing of the Constitution unless it has been reversed by the Supreme Court or by a law of the appropriate legislature.
(c) A High Court has power of superintendence over all Courts in the State including subordinate Courts. (Article 227)
(d) A High Court has writ jurisdiction. (Article 226)
(e) Transfer of certain cases. (Article 228)
Establishment of subordinate Courts
District Courts are subordinate to the High Court. According to Article 233 (1), appointment of District Judges shall be made by Governor of the State with consultation of the High Court.
The expression District Judge shall include the following:
(a) Additional District Judge,
(b) Chief Judge of Small Causes;
(c) Chief Presidency Magistrate,
(d) Additional Chief Presidency Magistrate,
(e) Sessions Judge;
(f) Additional Sessions Judge;
(g) Assistant Sessions Judge