NIOS Class 12 Introduction to Law Chapter 7 Techniques of Law and Remedies – I

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NIOS Class 12 Introduction to Law Chapter 7 Techniques of Law and Remedies – I

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Techniques of Law and Remedies – I

Chapter: 7

Module – 2 Function and Techniques of Law

INTEXT QUESTIONS 7.1 

1. List the various theories of punishment. 

Ans: There are Five different Theories of punishment being used in law to punish the wrong-doers. 

These are as follows: 

(i) Deterrent theory. 

(ii) Preventive theory. 

(iii) Reformative theory. 

(iv) Retributive theory. 

(v) Compensatory theory.

2. What is advocated by Compensation Theory? 

Ans: Compensation Theory states that, “the object of punishment must not be merely to prevent further crimes but also compensate the victim of the crime. This theory further believes that the main spring of criminality is greed and if the offender is made to return the ill gotten benefits of the crime, the spring of criminality would be dried up.”

3. Is ‘punishment’ necessary?

Ans: Yes, ‘Punishment’ is necessary for the wrong-doer. The punishment makes the offence less lucrative or a bad deal. This kills the thrill of committing of an offence. Though the degree of punishment varies from crime to crime. For example, in case of rarest of rare cases which are heinous in nature and performance of the act are awarded death penalty to the wrongdoer. Further, the punishments are also necessary because if there is no punishment to the offence then the wrong-doer will be motivated to commit more crimes and it is also possible that the wrong-doer starts committing more heinous crimes as he/she knows that there is no punishment for the crime.

INTEXT QUESTIONS 7.2 

1. Explain the term ‘Pleading’. 

Ans: According to P. C. Mogha, ‘Pleadings’ are the statements in writing drawn up and filed by each party to a case stating what his/her contentions will be at the trial and giving all such details as his/her opponent needs to know in order to prepare his/her case in answer. Thus, ‘pleading’ means, a written statement by the victim to tell his/her contentions will be at the trial and giving all such details as his/her opponent needs to know and accordingly the wrong-doer also prepares his/her side of the answer in defense.

2. List any two Principles of Pleading.

Ans: (i) Every ‘Pleading’ must state the facts and not the Law. 

(ii) Every ‘Pleading’ must state all the material facts and material facts only.

INTEXT QUESTIONS 7.3 

1. Explain the term ‘Drafting’. 

Ans: ‘Drafting’ is a combination of law and the facts of law in a language form. In law, ‘drafting’ means preparing a legal document for legal purposes. Thus, the language used in the drafting is legal language that is understood by a person who has legal knowledge. Drafting is a very articulated work, where the drafter has to choose the right word as well as the right concept i.e. right law and the right fact to law. Therefore, drafting is a technique of writing a legal documents on which many a times the success of the case depends.

2. List the two broad heads for drafting a good legal document.

Ans: The two brand Heads for Drafting a good legal document are: 

(a) Planning.

(b) Writing. 

INTEXT QUESTIONS 7.4 

1. Explain the ‘remedies’ available in civil matters. 

Ans: (a) Compensation. 

(b) Specific Relief.

2. Define; the terms: 

(a) Compensation. 

Ans: ‘Compensation’ is a remedy provided to the conviction for actual loss, pain and suffering being undergone.

(b) Specific Relief. 

Ans: The ‘Specific Relief’ is a remedy provided to the victim under the Specific Relief Act, 1877. It is a remedy where law allows specific relief to a person whose right has been invaded. The relief is called ‘Specific’ because it is a relief in terms of the very thing to which a ‘suitor’ is entitled.

INTEXT QUESTIONS 7.5 

1. List the five types of ‘Writs’. 

Ans: There are Five Types of ‘writs’. There are : 

(i) Habeas Corpus. 

(ii) Mandamus. 

(iii) Prohibition.

(iv) Certiorari. 

(v) Quo Warranto.

2. Define Write of ‘Habeas Corpus’.

Ans: ‘Habeas Corpus’ means “to have the body”. It is the nature of an order of a Superior Court calling upon a person who has unlawfully detained another person to produce the latter before the Court.

INTEXT QUESTIONS 7.6 

1. Define the concept of Public Interest Litigation (PIL). 

Ans: The concept of Public Interest Litigation (PIL) is in consonance with the objects enshrined in Article 39-A of the Constitution of India to protect and deliver prompt social justice with the help of law. Any person or the ‘victim’ may approach the court of Law to protect the public interest at large. Court may also force ‘svo moto’ notice in order to protect the public interest at large.

2. List some activities of Public Interest Litigation (PIL).

Ans: (i) Pollution. 

(ii) Road Safety. 

(iii) Chemical hazards.

(iv) Constructional hazards. 

(v) Terrorism.

TERMINAL EXERCISES

1. Explain briefly the various remedial measures of Civil Law. 

Ans: (i) Damages (Compensation): Monetary award to put the injured party in the position they would have been in but for the wrong. Includes compensatory damages for actual loss, nominal damages where rights are infringed without real loss, and (rarely in civil law) punitive/exemplary damages where punishment is warranted.

(ii) Restitution: Order requiring the wrong-doer to return benefits unjustly gained (rescinding unjust enrichment) — e.g., refund of money paid under a void contract or return of specific property.

(iii) Specific Relief (Equitable Relief): Court orders that require performance in kind rather than money:

• Specific performance: Compel fulfilment of contractual obligations (common for unique goods/land).

• Injunctions: Prohibitory (stop doing an act) or mandatory (compel an act) to prevent or rectify harm.

• Recovery of possession: Restoration of physical possession of property.

(iv) Declaratory Relief: A judicial declaration of the parties’ rights or legal status without ordering coercive action (e.g., “party A is the legal owner”). Useful to remove uncertainty and prevent future disputes.

(v) Coercive Remedies / Execution: Measures to enforce orders: attachment and sale of assets, garnishee proceedings, appointment of receivers, or contempt proceedings to compel obedience to court orders.

(vi) Costs and Interest: Award of legal costs (court fees, solicitor’s fees in some jurisdictions) and pre- or post-judgment interest to compensate for delay in payment.

(vii) Equitable Accounting & Constructive Trusts: Remedies that require disclosure of profits, account for gains, or impose trust obligations where conscience demands (e.g., fiduciary breaches).

(viii) Restorative/Corrective Orders: Rescission (cancel a contract) and rectification (correct written documents to reflect true agreement) to restore parties to their rightful positions.

(ix) Alternative Remedies / ADR-related Orders: Courts may order mediation, arbitration stay, or settlement terms as part of civil remedy design—encouraging efficient resolution.

2. Identify the remedies available to the victim under Civil Law. 

Ans: In the civil matters the remedies are mostly of monetary in nature. These matters have remedies of compensation of the actual loss, pain and sufferings and legal costs. 

The various types of remedial measures are as follows: 

(i) Compensation: It is a remedy provided to the victim for the actual loss, pain and suffering being undergone. The law penalizes the wrong-doer by awarding the compensation to the victim to compensate for the loss and pain and suffering. 

(ii) Specific Relief: ‘Specific Relief’ is contained in the Specific Relief Act I of 1877, before the passing of the Specific Relief Act the law as to Specific Relief was contained in Sections 15 and 192 of the Civil Procedure Code (Act VIII) of 1859. The ‘relief’ is called specific because it is relief in specie i.e. in terms of the very thing to which a suitor is entitled. It is a remedy where law allows to a person whose right has been invaded. 

The forms of ‘Specific Relief’ are of:

(a) Taking possession of property and delivering it to the claimant who is out of possession. 

(b) Requiring performance of contract. 

(c) Compelling the performance of statutory duty and.

(d) Preventing the doing of wrong. 

Thus, ‘Specific Relief’ to be granted only for enforcing individual civil rights and not for enforcing penal laws. 

The Civil Law is both facilitating and enabling as the stringent laws are facilitating victims to organised as well as at the same time it is enabling them to raise their voices and contest a case in court of law to seek justice.

3. What are the remedies available to the victim under Criminal Law? 

Ans: In the criminal matters the remedies are often known as sentences. These matters have remedies of compensation of the actual loss, pain and sufferings and legal costs. 

The various types of remedial measures are as follows: 

(i) Compensation: it is a remedy provided to the victim for the actual loss, pain and suffering being undergone. The law penalizes the wrongdoer by awarding the compensation to the victim to compensate for the loss and pain and suffering. Many a times it has been observed by the Hon’ble courts that only money compensation is not enough so in such case(s) the punitive damages are given as a sentence! Under punitive damage sentence the court may order fine plus imprisonment. For example, in case of violation of rule of Indian Railways the court may pass a sentence of punitive damage in nature as per the nature of offence. 

(ii) Specific Relief: specific relief is contained in the Specific Relief Act I of 1877, before the passing of the Specific Relief Act the law as to Specific Relief was contained in Sections 15 and 192 of the Civil Procedure Code (Act VIII) of 1859. The relief is called specific because it is relief in specie i.e. in terms of the very thing to which a suitor is entitled. It is a remedy where law allows to a person whose right has been invaded. 

The forms of ‘Specific Relief’ are of: 

(a) Taking possession of property and delivering it to the claimant who is out of possession.

(b) Requiring performance of contract.

(c) Compelling the performance of statutory duty and.

(d) Preventing the doing of wrong. 

Thus, ‘Specific Relief’ to be granted only for enforcing individual civil rights and not for enforcing penal laws. 

(iii) The Criminal Law is both facilitating and enabling as the stringent laws are facilitating victims to organised as well as at the same time it is enabling them to raise their voices and contest a case in court of law to seek justice.

4. What is the difference between Civil Remedies and Criminal Remedies? 

Ans: 

Basis of Difference	Civil Remedies	Criminal Remedies
1. Nature of Wrong	Concerned with private wrongs that affect individual rights.	Concerned with public wrongs that affect society at large.
2. Purpose	To compensate the victim for loss, injury, or suffering.	To punish the offender for committing an offence.
3. Type of Remedy	Remedies are generally monetary or specific reliefs.	Remedies are known as sentences, which include fine, imprisonment, or both.
4. Law Involved	Governed mainly by Civil Law (e.g., Contract Law, Tort Law, Specific Relief Act).	Governed mainly by Criminal Law (e.g., Indian Penal Code, Code of Criminal Procedure).
5. Parties Involved	Case is between individuals (plaintiff vs. defendant).	Case is between State and the accused (State vs. accused).
6. Burden of Proof	Based on preponderance of probability (balance of evidence).	Based on proof beyond reasonable doubt.
7. Result of Case	Results in compensation or restitution to the victim.	Results in punishment such as fine, imprisonment, or both.
8. Example	Breach of contract, property dispute, defamation.	Theft, murder, assault, violation of law.

5. Explain the Reformative Technique of punishment. 

Ans: According to the Reformative Theory of Punishment, a crime is committed as a result of the conflict between the character and the motive of the criminal. This theory aims at strengthening the character of the wrongdoer so that he or she does not become an easy victim to personal temptations and seeks to cure the mental condition of the offender.

The theory is based on the dictums  “You cannot cure by killing” and “Crime is like a disease.” It emphasizes the use of rehabilitative and corrective techniques to reform offenders. These methods motivate wrongdoers by providing them employment and self-employment opportunities, helping them to earn a livelihood that improves their economic condition and reduces the motive to commit crime.

Some of the punishments suggested under this philosophy include jail sentences, probation, reformatory homes, and vocational training.

An important distinction should be made between jail and imprisonment. Though often used interchangeably, they are not the same. A jail is meant for short-term confinement and provides only basic facilities such as food, shelter, and security. In contrast, imprisonment refers to long-term sentences in prisons, which are equipped with better amenities and facilities for rehabilitation.

6. What is the difference between Deterrent Technique and Retributive Technique of punishment? 

Ans: 

Basis	Deterrent Technique	Retributive Technique
Meaning	The deterrent technique aims to prevent crimes by creating fear of punishment in the minds of others.	The retributive technique aims to inflict punishment as revenge or retaliation for the wrong done.
Objective	To discourage both the offender and others in society from committing crimes in the future.	To make the offender suffer for the wrongdoing, giving a sense of justice to the victim and society.
Motto / Principle	“Prevention is better than cure.”	“An eye for an eye, a tooth for a tooth.”
Nature of Punishment	Punishment is severe and exemplary to act as a warning.	Punishment is proportionate to the offence, meant to avenge the wrong.
Focus	Focuses on the future—to prevent future crimes.	Focuses on the past—to punish for the crime already committed.
Example	Death penalty or long-term imprisonment to deter others from similar crimes.	Giving a murderer the death penalty because he took someone’s life.

7. Explain are the principles laid down for a ‘good pleading’. 

Ans: (i) Pleading must state facts and not law:

• Every pleading should contain only facts and not the provisions of law or conclusions of law.

• The court is bound to take judicial notice of the law applicable to the pleaded facts.

Hence, the following should not be included in a pleading:

(a) Provisions of law.

(b) Conclusions of law.

(c) Conclusions of mixed law and facts.

Exceptions: Foreign law, customs, mixed questions of law and fact, legal pleas, and inferences of law.

(ii) Pleading must state all the material facts only:

Every pleading must include only the material facts, i.e., those facts which a plaintiff must allege to show a right to sue, or a defendant must allege to constitute his defense.

As per S.N. Balakrishnan v. George Fernandez (AIR 1969), omission of a single material fact leads to an incomplete cause of action, making the pleading defective.

Only facts relevant at the present stage of the case should be mentioned.

Exceptions:

(i) Condition precedent: assumed unless specifically denied.

(ii) Presumption of law: no need to allege facts the law already presumes.

(iii) Matters of inducement: introductory facts like who the parties are, their business, or relationships may be included for clarity.

(iv) Pleading must state facts and not the evidence:

A pleading should contain only the material facts relied upon, not the evidence that will prove them.

The purpose is to inform the opposite party of the case they must meet, without burdening the pleading with unnecessary details.

8. Discuss the various principles to be borne in mind while drafting a ‘pleading’.

Ans: (i) State Facts, Not Law: A pleading should contain only material facts and not provisions or conclusions of law. The court is presumed to know the law.

(ii) State All Material Facts Only: Only essential facts that form the basis of a claim or defence should be included. Irrelevant or unnecessary details must be avoided.

(iii) Do Not Include Evidence: The pleading should mention only the facts relied 

upon, not the evidence by which those facts are to be proved.

(iv) Be Clear, Definite, and Concise: The language must be simple, clear, and precise. Each paragraph should deal with one point only and be numbered properly.

(v) State Facts in Chronological Order: Facts should be arranged in the sequence in which events occurred to ensure clarity and logical flow.

(vi) Avoid Argumentative or Emotional Language: The pleading must be factual and formal, avoiding arguments, opinions, or emotions.

9. How is ‘Drafting’ different from ‘Pleading’? 

Ans: 

Basis	Drafting	Pleading
Meaning	Drafting means the preparation of legal documents for legal purposes.	Pleading means the formal written statement of a party’s case in a court of law.
Purpose	To express legal rights and duties in clear legal terms.	To present facts and contentions before the court.
Nature	It includes documents like contracts, deeds, wills, etc.	It includes statements like plaints, written statements, or replies.
Audience	Prepared for legal transactions and record-keeping.	Prepared for judicial proceedings in courts.
Skill Required	Requires knowledge of legal language and precision in wording.	Requires understanding of procedure and law of pleadings.
Example	Drafting a sale deed, lease deed, or affidavit.	Filing a plaint or written statement in a civil case.

10. How many types of Writ are there?

Ans: The types of Writs are as follows: 

(i) Habeas Corpus: Means “to have the body“. It is in the nature of an order calling upon a person who has unlawfully detained another person to produce the latter before the court. Thus, where “A” has been unlawfully detained by a person “B”. A Writ of Habeas Corpus in nature can be filed under article 226 in the High Court. For example cases of kidnapping are also of nature of unlawful detention of a person. 

(ii) Mandamus: Literally means “Command”. It is thus an order of a superior court commanding a person holding a public office or a public authority- (including the Government) to do or not to do something, in the nature of public duty. Thus, where a police officer not filing FIR of a victim can be directed by the superior court to file a FIR and take suitable action on the complaint so lodged. 

(iii) Prohibition: A Writ of Prohibition is issued by a superior court to an inferior court or tribunal to prevent it from exceeding its jurisdiction and to compel it to keep within the limits of its jurisdiction. Thus, where an inferior court gives an award on a case on which it cannot hold a trail because it is outside the jurisdiction of that court, a superior court may direct the inferior court to forward the case to the right court or the superior court on the writ petition being filed of the nature of prohibition. 

(iv) Certiorari: A Writ of Certiorari has much in common with a Writ of Prohibition. The only difference between the two is, whereas a writ of prohibition is issued to prevent an inferior court or tribunal to go ahead with the trial of a case in which it has assumed excess of jurisdiction, a writ of certiorari is issued to quash the order passed by an inferior court or tribunal in excess of jurisdiction. 

(v) Quo Warranto: The words quo warranto means “what is your authority”? A writ of Quo Warranto is issued against the holder of a public office to show to the court under what authority he holds the office. Thus, where a person claims to be customs commissioner can be asked by the court to show up his/her authority for the office being so claimed, under the writ petition being filed of nature of Quo Warranto.

11. What is the full form of PIL? 

Ans: The full form of PIL is Public Interest Litigation.

12. What is the difference between Writ of ‘Habeas Corpus’ and ‘Quo Warranto’? 

Ans: 

Basis	Writ of Habeas Corpus	Writ of Quo Warranto
Meaning	The term Habeas Corpus means “to have the body.” It is issued to produce a person who is detained or imprisoned before the court.	The term Quo Warranto means “by what authority.” It is issued to prevent a person from holding a public office without legal authority.
Purpose	To secure the release of a person who is illegally detained or imprisoned.	To restrain an unauthorized person from usurping a public office.
Nature of Right Protected	Protects the personal liberty of an individual.	Protects the public from unlawful occupation of public office.
Who Can Apply	The detained person or anyone on his behalf.	Any member of the public can file it, as it concerns public interest.
Against Whom Issued	Issued against any authority or individual who has unlawfully detained a person.	Issued against a person holding a public office without proper qualification or authority.
Example	If a person is arrested without legal justification, the court may order the authority to produce him and justify the detention.	If a person holds the post of a Vice-Chancellor without eligibility, a writ of Quo Warranto can be filed questioning his authority.

13. Explain briefly the various Techniques of Punishments.

Ans: The types of punishments are based on the various theories of punishments. These are as follows: 

(i) Deterrent Theory: A punishment is primarily deterrent when its object is to show the futility of crime and thereby teach a lesson to others. The philosophy behind this theory and type of punishment is to give a clear message that “a crime is an ill bargain to the offender”. Thus, followers of this theory advocates capital punishments to the offenders. 

(ii) Preventive Theory: This Theory aims to disable the wrong-doer and creating a fear of punishment in the mind of the wrong doer. This Theory works in the following three ways: z By inspiring all perspective wrong doers with the fear of punishment; 

(iii) By disabling the wrong doer from immediately committing any crime; and z By transforming the offender by a process of reformation and re– education, so that he/she would not commit crime again. Some of the punishments advocated by the followers of this philosophy are imprisonment, fines etc. 

(iv) Reformative Theory: According to this Theory a ‘crime’ is committed as a result of the conflict between the character and the motive of the criminal. This Theory aims at strengthening the character of the wrong doer, so that he/she does becomes an easy victim to its own temptations and curing the mental state of the wrong-doer. Thus, this Theory works on the dictums, “you cannot cure by killing” and “Crime is like a disease”. This theory also uses rehabilitative techniques to reform the wrong-doers. These techniques are used to motivate the wrong-doers by opening the doors of employment and self-employment for them. This way wrong-doers start earning that uplifts their economic status, which in return takes off the motive of committing crime.

(v) Retributive Theory: According to this Theory any rational system of administration of justice must attempt to satisfy this emotion of retributive indigenous. This kind of punishment will not only satisfy the primitive spirit of private vengeance in the wronged, but also quench a similar feeling in the society at large. This Theory is based on the idea of vindictive justice, or a tooth for a tooth and an eye for an eye. 

(vi) Compensation Theory: According to this Theory the object of punishment must not be merely to prevent further crimes but also compensate the victim of the crime. This Theory further believes that the main spring of criminality is greed and if the offender is made to return the ill gotten benefits of the crime, the spring of criminality would be dried up.