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Criminal Jurisprudence
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LLM · Group 5 Criminal Law and Criminal Administration
2025-26 Examination
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LLM Group 5 Criminal Law and Criminal Administration Criminal Jurisprudence 2025-26 Question Paper with Solutions
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First published on munotes.in on 13 August 2026.
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The question paper reproduced here is the paper as set by the University of Mumbai at the 2025-26 examination.
Contents
The questions below are the paper as the University of Mumbai set it at the 2025-26 examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2025-26 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 7 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
SECTION I
Paper Subject Code 76017, printer's form 05111, sat 27 February 2026. Attempt ANY FOUR questions, all questions carry equal marks, cite relevant case laws wherever required
any four of seven · 100 Marks
1.What is meant by Decriminalization of an Offence? How does it reflect the evolving nature of criminal law?[25]
Answer
For full marks, cover: the second sentence is the question, and it is not the section 377 question the earlier papers asked. Define decriminalisation precisely, then treat it as evidence of something larger: that the boundary of the criminal law moves, in both directions, and that what moves it can be identified. Give the theoretical basis, the Indian instances in both directions, and the mechanisms by which the boundary shifts. A candidate who writes only about section 377 has answered the first sentence and ignored the second.
What decriminalisation means
Decriminalisation is the withdrawal of conduct from the catalogue of offences, so that what the law once punished ceases to be punishable at all. Behind it lies a judgment that the criminal sanction, the most coercive instrument the State possesses, is the wrong instrument for this conduct: because it harms no identifiable person, because it cannot be enforced without arbitrariness, or because the provision offends a constitutional guarantee.
Three distinctions decide marks.
It is not legalisation. Legalisation creates a lawful and usually regulated activity. Decriminalisation removes the penalty only, and the conduct may remain a civil wrong, a ground for divorce or a disciplinary offence.
It is not non-enforcement. Where prosecutors stop charging an offence that remains on the statute book, the conduct is still criminal, and the provision continues to justify arrest, to support blackmail and to disqualify.
It is not reading down. A court that reads a provision down leaves the text in force and narrows its application.
The routes are three: legislative repeal, which is complete; judicial invalidation or reading down, which is quicker but leaves the text standing; and executive abstention, which is not decriminalisation at all.
Why the boundary of the criminal law moves at all
The question asks what decriminalisation reflects, and the answer begins here.
The criminal law has no fixed content. Section 40 of the Penal Code defined an offence as a thing made punishable by the Code, and section 2(24) of the Bharatiya Nyaya Sanhita, 2023 does the same. That definition is formal: an act is a crime because the State has chosen to treat it as one. It follows that the catalogue is a policy instrument, and that it will change as the policy changes.
Three forces move it.
The harm principle. John Stuart Mill's proposition that power may rightfully be exercised over a member of a civilised community against his will only to prevent harm to others. Applied to the criminal law it excludes offences whose only justification is the enforcement of a moral view. The Wolfenden Committee applied it in 1957, reporting that homosexual behaviour between consenting adults in private should cease to be criminal since there must remain a realm of private morality not the law's business. Lord Devlin answered that a recognised morality is as necessary to a society as a recognised government; H. L. A. Hart replied in Law, Liberty and Morality that the mere fact that conduct offends the majority is not a harm, and that Devlin had confused the disintegration of a society with a change in its moral opinions.
Practical limits. Herbert Packer's argument in The Limits of the Criminal Sanction: criminalising conduct a large part of the population engages in produces selective enforcement, corruption and contempt for the law, and buys no compliance.
Constitutional review. This is the distinctively Indian force, and the one the question most rewards. Where the criminal catalogue is subject to fundamental rights, a provision may be removed not because policy has changed but because it was always invalid.
The Indian instances of decriminalisation
Section 377. Naz Foundation v. Government of NCT of Delhi, (2009) 160 DLT 277, read it down; Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, restored it in 2013 on the reasoning that it was facially neutral and that only a "minuscule fraction" of the population was affected; and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, decided by a Constitution Bench on 6 September 2018, overruled that and read the section down for consenting adults, holding it contrary to Articles 14, 15, 19(1)(a) and 21. The Court rejected the "minuscule fraction" reasoning, holding that rights do not depend on the number who need them, and applied constitutional morality against popular morality. It relied on National Legal Services Authority v. Union of India, (2014) 5 SCC 438, and on K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1, which had expressly disapproved Koushal.
Section 497, adultery. Joseph Shine v. Union of India, (2019) 3 SCC 39, struck it down, holding that the offence treated a wife as her husband's property because it turned entirely on whether the husband had consented, and that it violated Articles 14, 15 and 21.
Section 309, attempt to suicide. Not struck down but displaced: section 115 of the Mental Healthcare Act, 2017 presumes severe stress and directs that the person shall not be tried and punished.
What the Sanhita then did, which is the point of the question
The Bharatiya Nyaya Sanhita, 2023, in force from 1 July 2024, completed each of those movements and in one case went further than the courts had.
It contains no offence of adultery, so Joseph Shine is now legislative as well as judicial.
It retains attempt to suicide only in the narrow form of section 226, an attempt made with intent to compel or restrain a public servant from discharging his duty.
And it contains no provision corresponding to section 377 at all. That is the important fact, because Navtej had read the section down, not struck it out, and had expressly preserved it for non-consensual acts, for acts with minors and for bestiality. Until 2024 section 377 was the only Indian provision under which the non-consensual penetrative sexual assault of an adult male could be charged, the offence of rape being defined with a woman as the victim.
The repeal without a replacement therefore left a gap: the Sanhita carries no general offence covering non-consensual sexual intercourse where the victim is an adult male, and none covering bestiality. Minors remain protected by the gender-neutral Protection of Children from Sexual Offences Act, 2012. The Parliamentary Standing Committee on Home Affairs had recommended during the passage of the Bill that a provision corresponding to section 377 be retained for those residual cases, and the recommendation was not accepted.
The boundary also moves the other way
This is where the answer earns its second half, because a candidate who describes only decriminalisation has described half the evolution.
Triple talaq was criminalised. In Shayara Bano v. Union of India, (2017) 9 SCC 1, a Constitution Bench held instantaneous triple talaq void by three to two. Parliament then enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, making its pronouncement a cognizable offence punishable with imprisonment up to three years. The same decade that decriminalised consensual sexual conduct and adultery criminalised the pronouncement of a divorce which the Court had already held to be legally ineffective.
Lynching was criminalised. In Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501, the Supreme Court described lynching as an affront to the rule of law, issued preventive, remedial and punitive directions, and recommended that Parliament create a separate offence. Section 103(2) of the Sanhita now punishes murder by a group of five or more persons acting in concert on the ground of race, caste, community, sex, place of birth, language or personal belief with death or imprisonment for life for every member.
Sedition was replaced, not repealed. In S. G. Vombatkere v. Union of India the Supreme Court in May 2022 directed that section 124A be kept in abeyance pending re-examination. The Sanhita then replaced it with section 152, "Act endangering sovereignty, unity and integrity of India", punishing anyone who purposely or knowingly excites or attempts to excite secession, armed rebellion or subversive activities, or encourages feelings of separatist activities, by words, signs, visible representation, electronic communication or the use of financial means. The word "sedition" appears nowhere in the Sanhita, but the successor offence has a wider actus reus than the provision it replaced.
And the catalogue has expanded into areas the Penal Code never touched: organised crime and terrorist acts now appear in the Sanhita itself, at sections 111 and 113, having previously been confined to special statutes.
What the evolution reflects
Four propositions, and they are the answer to the question.
The criminal law is retreating from private morality and advancing on collective harm. The offences that have gone were offences against a moral view of private conduct: consensual sexual acts, adultery, the attempt to end one's own life. The offences that have arrived are directed at organised, collective or identity-based violence: lynching, organised crime, terrorism.
The instrument of retreat has been the court and the instrument of advance has been the legislature. Every decriminalisation above began in a courtroom; every new offence began in Parliament. That is a structural feature and not an accident: a court can only remove, and only for unconstitutionality.
Removal by a court is incomplete. Navtej could only read section 377 down, and a section read down remains on the statute book and continues to appear in charge sheets. The real removal waited six years for Parliament. That is the strongest practical argument for legislative rather than judicial decriminalisation.
And removal by omission can be careless. The repeal of section 377 took with it the residue Navtej had deliberately preserved. A legislature repealing a provision that was doing two jobs, one invalidated and one preserved, has to replace the second, and did not.
Criticism
Of judicial decriminalisation, the objection Koushal made: repeal is a legislative function, and a court that invalidates a duly enacted section substitutes its own morality for the legislature's. Navtej answered that constitutional morality binds the majority and that fundamental rights are not settled by a headcount, which is the better view where a fundamental right is engaged, but it does not meet the practical objection that a court cannot finish the job.
Of legislative criminalisation, the objection that new offences are created in response to particular incidents rather than on principle, and that the triple talaq offence is the clearest example: if the pronouncement is void, the marriage subsists, and imprisoning the husband removes the maintenance the wife is meant to receive. That is the criminal sanction being used where the civil consequence had already done the work, which is the opposite of the reasoning in Joseph Shine.
Conclusion. Decriminalisation is the removal of conduct from the criminal law, distinct from legalisation, from non-enforcement and from reading down, and justified in the modern debate by the harm principle as Hart stated it against Devlin. What it reflects is that the boundary of the criminal law is not fixed but is a policy instrument that moves in both directions, and that in India it has moved by a division of labour: courts have removed offences against private morality, striking down section 497 in Joseph Shine and reading section 377 down in Navtej Singh Johar, while Parliament has added offences directed at collective harm, criminalising triple talaq in 2019 and creating the lynching provision in section 103(2) of the Sanhita. The Bharatiya Nyaya Sanhita completed both movements when it came into force on 1 July 2024, and in doing so showed the risk of the second method as well as the first, by repealing section 377 entirely and leaving unreplaced the residue the Court had preserved.
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