LLM Group 5 Criminal Law and Criminal Administration Criminal Jurisprudence 2015 Question Paper with Solutions

For full marks, cover: the question names three defences and the marks are in the differences between them, not in three separate summaries. Say plainly that infancy is a denial of capacity fixed by age, insanity a denial of the cognitive ability the offence presupposes, and intoxication only a partial and heavily qualified concession. Give the Indian Penal Code section the paper is written in and the Bharatiya Nyaya Sanhita section that has replaced it. Work at least one decided case on each of the three. Finish on the one thing that unites them: each is a claim that the accused could not form the mental element, and each is proved by the accused, not disproved by the State.

Two consequences follow and both are worth stating. First, the burden. Section 105 of the Evidence Act, 1872, now section 108 of the Bharatiya Sakshya Adhiniyam, 2023, places on the accused the burden of proving that his case falls within an exception, and raises a presumption against the existence of such circumstances. Second, the standard. That burden is not the prosecution's burden. It is discharged on a preponderance of probabilities, and the general burden of proving guilt beyond reasonable doubt never moves off the State.

Infancy: an immunity fixed by age, and what has displaced it

The Code draws two lines. Under section 82, now section 20, nothing is an offence which is done by a child under seven years of age. That immunity is absolute and irrebuttable. It is the common law rule of doli incapax in statutory form: below seven the law declines to enquire into the child's mind at all.

Kakoo v. State of Himachal Pradesh, (1976) 2 SCC 215, is the counterpart at the level of sentence. A boy of about thirteen was convicted of the rape of a child of two and sentenced to four years' rigorous imprisonment. The Supreme Court held the conviction good, section 83 being unavailable above twelve, but cut the sentence to one year, holding that a juvenile offender must not be sent into the company of hardened criminals for longer than is unavoidable. Together the two cases mark the real position: the age bar is narrow, and the mitigation that follows it is where the child's youth actually tells.

Insanity: legal, not medical

Section 84, now section 22, exempts a person who, at the time of the act, "by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law". It is the Indian enactment of the answers the judges gave the House of Lords in M'Naghten's Case, (1843) 10 Cl & F 200, after Daniel M'Naghten, acting under a delusion of persecution by the Tory party, shot Edward Drummond in mistake for Sir Robert Peel and was acquitted.

The Indian section is not a copy. The English formula asks whether the accused knew the act was wrong; R v. Windle, [1952] 2 QB 826, read "wrong" as legally wrong, so a man who knew his act was against the law but believed it morally right was convicted. Section 84 says "either wrong or contrary to law", in the disjunctive, so a defect of reason that destroys the accused's grasp of moral wrongness suffices even if he knew the act was unlawful. That is the single most examinable difference between the two systems and it is in favour of the accused.

Ratan Lal v. State of Madhya Pradesh, (1970) 3 SCC 533, fixes the moment of enquiry: the crucial point of time is the time of the commission of the offence, and conduct before and after is relevant only as evidence of the state of mind at that instant.

Intoxication: a defence only when the drink was not the accused's choice

The Code splits intoxication in two, and the split is the answer.

Section 85, now section 23, is the complete defence. It exempts a person incapable, by reason of intoxication, of knowing the nature of the act or that it was wrong or contrary to law, but only where the intoxicant "was administered to him without his knowledge or against his will". It is involuntary intoxication, and it is rare.

Section 86, now section 24, deals with the ordinary case of a man who drank of his own accord and is charged with an offence requiring a particular intent or knowledge. It provides that he shall be dealt with as if he had the same knowledge as he would have had if sober. It says nothing whatever about intent, and the gap is deliberate.

The English law behind it is Director of Public Prosecutions v. Beard, [1920] AC 479, where Lord Birkenhead reduced the matter to three propositions: insanity produced by drink is treated as insanity; evidence of drunkenness rendering the accused incapable of forming the specific intent is to be weighed with the other facts in deciding whether he had it; and evidence falling short of that merely establishes that his mind was affected so that he more readily gave way to violent passion, which does not rebut the presumption that a man intends the natural consequences of his acts.

The three compared

The contrary argument deserves to be put as strongly. A volitional test asks a court to distinguish an impulse that could not be resisted from one that simply was not, which is a distinction no expert can demonstrate and every accused can assert. The cognitive test is crude precisely because it is administrable, and the Indian answer has been to keep the test narrow and to do the work at the stage of sentence and of custody instead.

The criticism of section 86 runs the other way: that it is too kind. A man who drinks himself into a state in which he kills is not obviously less blameworthy than one who kills sober, and the choice to drink was itself voluntary. English law met that objection in Director of Public Prosecutions v. Majewski, [1977] AC 443, by holding that self-induced intoxication is no answer at all to a crime of basic intent, reserving the plea for crimes of specific intent. India has no such doctrinal division, and Basdev achieves much the same result through the presumption about natural consequences rather than through a rule of classification.

Conclusion. The three defences are one idea applied to three different causes of incapacity: that criminal liability presupposes a mind capable of the fault the offence describes. Infancy fixes the incapacity by age and is now largely superseded by the Juvenile Justice Act, 2015. Insanity requires legal, not medical, incapacity at the moment of the act, and after Surendra Mishra and Dahyabhai Thakker it is a narrow exception with a second life as a source of reasonable doubt. Intoxication is a real defence only where the accused did not choose to be intoxicated; where he did, section 86 of the Penal Code and section 24 of the Sanhita impute knowledge to him and Basdev leaves intention to be found from the facts. The practical order of strength is therefore involuntary intoxication and infancy below seven at the top, insanity in the middle, and voluntary intoxication at the bottom, where it is not a defence at all but an argument about what the accused actually intended.

The Penal Code answered with two devices of constructive liability. Section 34 attributed to each of several persons the criminal act of all, where the act was done in furtherance of their common intention. Section 149 made every member of an unlawful assembly guilty of an offence committed by any member in prosecution of the common object of that assembly. Under the Bharatiya Nyaya Sanhita, 2023, in force since 1 July 2024, common intention has become section 3(5) and common object section 190, with unlawful assembly defined in section 189.

The renumbering has a trap in it that is worth a line in the exam. Common intention is no longer a section of its own; it is a sub-section of the general explanations clause. There is a section 34 in the Sanhita and it is "Things done in private defence". Writing "section 34 of the BNS" for common intention is now simply wrong.

The first difference: how many people, and what binds them

Section 34 and section 3(5) require two or more persons. Nothing more. Two men who agree to beat a third and do so are within it.

Common intention means a meeting of minds before the act. Mahbub Shah v. Emperor, AIR 1945 PC 118, is the case that fixed it. On 25 August 1943 Allah Dad and others took a boat down the Indus to cut reeds. Mahbub Shah's father warned them off land he claimed; they cut the reeds anyway. On the way back Ghulam Quasim Shah stopped the boat and demanded the reeds, and Allah Dad struck him with a lari. Quasim Shah called for help. Wali Shah and Mahbub Shah came up with guns; Wali Shah shot Allah Dad dead and Mahbub Shah shot and wounded Hamidullah. Mahbub Shah was convicted of murder with the aid of section 34.

The Privy Council set the conviction aside. There was no evidence of any pre-arranged plan between the two men to kill Allah Dad; they had at most the same intention, formed on the spur of the moment, to rescue Quasim Shah. The Board warned that "care must be taken not to confuse same or similar intention with common intention", that the partition dividing them is thin, and that the distinction is nonetheless real and substantial. That case bears on this question because it shows that acting together at the same moment is not enough: the prosecution must prove the minds met.

Barendra Kumar Ghose v. King Emperor, AIR 1925 PC 1, the postmaster case, is the leading authority and it is the case this paper's siblings ask for by name. On 3 August 1923 several men went to the sub-post office at Shankaritola in Bengal. The sub-postmaster was counting money when he was shot and killed. Barendra Kumar Ghose was caught fleeing; his defence was that he had stood outside the door, had fired no shot and had done nothing. The Privy Council upheld his conviction of murder read with section 34, holding that the section deals with the doing of separate acts, similar or diverse, by several persons, and that if all are done in furtherance of a common intention each person is liable for the result of them all as if he had done them himself. Standing at the door to cut off escape and to give warning was participation. The case bears on the question because it disposes of the commonest defence to a section 34 charge, which is that the accused did nothing.

Suresh v. State of Uttar Pradesh, (2001) 3 SCC 673, carried that further, holding that the "criminal act" in section 34 is not confined to a positive act and can include an omission, and that presence with a shared intention, facilitating the offence, suffices.

The later law has softened the rigour rather than the principle. Where no prejudice is caused to the accused a court may convert a charge under section 149 into one under section 34, because the facts alleged are largely the same, but the conversion must be tested for prejudice and not assumed.

The two set out together

The criticism of section 34 is the mirror image: because a pre-arranged plan is almost never proved directly, it is inferred from conduct, and the inference can slide into the very confusion between similar intention and common intention that Mahbub Shah forbade.

Conclusion. Common intention and common object both attribute to one man the act of another, but they do it on different grounds and at different prices. Section 34 of the Penal Code, now section 3(5) of the Sanhita, needs two persons, a prior meeting of minds and participation, and creates no offence of its own; the plan is what makes each answerable for all, as Barendra Kumar Ghose shows and Mahbub Shah shows by its absence. Section 149, now section 190, needs five persons, an enumerated object and nothing more than membership, creates a substantive offence, and reaches offences that were merely known to be likely. Where the facts allow both, section 149 is the easier case for the prosecution and the harder one to defend, which is precisely why Nanak Chand requires the charge to say which of the two the accused is called on to meet.

In the Penal Code the right occupies sections 96 to 106, the last group of the General Exceptions. In the Bharatiya Nyaya Sanhita, 2023 it occupies sections 34 to 44 and maps across one for one: 96 is 34, 97 is 35, and so on to 106, which is 44. The substance was carried over almost unaltered, and the two changes of wording are noted below where they arise.

Section 96, now section 34, is the foundation: nothing is an offence which is done in the exercise of the right of private defence. It creates no right by itself; it declares the consequence of the right created by the sections that follow.

What the right covers

Section 97, now section 35, gives the right two subjects. Every person has a right to defend, first, his own body and the body of any other person against any offence affecting the human body, and second, property, whether movable or immovable, of himself or of any other person, against theft, robbery, mischief or criminal trespass, or an attempt to commit any of those.

When the right extends to causing death

Of the body: section 100, now section 38. The right of private defence of the body extends to causing death only where the offence occasioning it falls into one of the enumerated descriptions: an assault reasonably causing apprehension of death; an assault reasonably causing apprehension of grievous hurt; an assault with the intention of committing rape; an assault with the intention of gratifying unnatural lust; an assault with the intention of kidnapping or abducting; an assault with the intention of wrongfully confining a person in circumstances reasonably causing apprehension that he will be unable to have recourse to the public authorities for release; and an act of throwing or administering acid, or an attempt to do so, reasonably causing apprehension of grievous hurt. The last was inserted by the Criminal Law (Amendment) Act, 2013 after the Justice Verma Committee reported, and is reproduced as clause (g) of section 38.

There is a curiosity here that is worth a sentence. Clause (d), assault with intent to gratify unnatural lust, survives in the Sanhita even though the Sanhita has abolished the offence of unnatural intercourse altogether. The trigger for a lethal defence has outlived the crime it referred to.

Jai Dev v. State of Punjab, AIR 1963 SC 612, is the case on the closing of the window. Once the danger has passed, the right is at an end, and what follows is not defence but retaliation. Chasing and killing an assailant who has been disarmed and is in flight is outside the section, however understandable it may be.

Section 106, now section 44, covers the hard case at the end. Where a person is under a deadly assault reasonably causing apprehension of death and cannot effectually exercise the right without risk of harm to an innocent person, the right extends to running that risk. A man surrounded by a murderous mob among which children are standing may still fire.

The limitations, which is where the marks are

Section 99, now section 37, contains four distinct restrictions and they should be given separately.

First, there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done or attempted to be done by a public servant acting in good faith under colour of his office, even though that act may not be strictly justifiable by law.

The cases that fix the standard

Deo Narain v. State of Uttar Pradesh, (1973) 1 SCC 347, is the answer to the argument that a defender must wait. There was a dispute over land; the party of the deceased advanced armed with lathis, one of them struck the appellant on the head, and the appellant used a spear, causing a fatal chest injury. The High Court held that he should have waited to see how serious the blow was. The Supreme Court set the conviction aside, holding that the law does not require a person to wait until he is actually injured, that a reasonable apprehension is enough, and that in the moment of a violent attack a defender cannot be expected to weigh with golden scales the precise force required. The case bears on the question because it tells the student how the fourth limitation in section 99 is actually applied: proportionality is judged from the position of a man under attack, not from the calm of the courtroom.

James Martin v. State of Kerala, (2004) 2 SCC 203, marks the outer edge. During a bandh a mob came to the accused's flour mill to force it to close, there was an assault, and the accused's father and he fired, killing two of the crowd. The Supreme Court accepted that a right of private defence had arisen but held that it had been exceeded, and it stated the governing idea in terms that answer this question directly: the right is a defensive right circumscribed by the statute, available only when the circumstances clearly justify it, and it should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose. The case bears on the question because it shows the two halves of section 99 and section 100 working together: an occasion for the right existed, and the response still went beyond what the occasion permitted.

On proof, Salim Zia v. State of Uttar Pradesh, (1979) 2 SCC 648, holds that the burden on the accused to establish the right is not as onerous as that on the prosecution, that it is discharged on a preponderance of probabilities, and that the plea can be founded on the material brought out in the prosecution case without the accused leading any evidence at all.

Conclusion. The right of private defence is an enumerated statutory right, not a general licence. Sections 96 to 106 of the Penal Code, now sections 34 to 44 of the Sanhita, give it to body and to a closed list of property offences, extend it against the acts of persons who are themselves immune, allow killing only within the seven descriptions of section 100 and the four of section 103, and time it from the first reasonable apprehension to the moment that apprehension ends. Its limitations are concentrated in section 99: no right against a public servant acting in good faith, none against acts done under his direction, none where there is time to reach the authorities, and never more harm than is necessary. After Deo Narain the necessity is judged as it appeared to a man under attack and not with golden scales, and after James Martin the right stops at the point where defence becomes retribution.

Every adjudication can err in two directions. It can convict the innocent, or it can acquit the guilty. No system can reduce both errors at once; a rule that lowers the chance of one raises the chance of the other. The presumption of innocence, together with the standard of proof beyond reasonable doubt, is a decision about which error to prefer. It instructs the court to accept a higher rate of wrongful acquittal in order to secure a lower rate of wrongful conviction.

That is a moral and political choice, and it cannot be derived from logic or from evidence. It is exactly this that gives the quotation in the question its force.

The political philosophy the quotation refers to

The choice was made in a particular place and time. Continental criminal procedure before the eighteenth century began from suspicion: the accused was an object of investigation, his confession was the queen of proofs, and torture was the ordinary means of obtaining it. The presumption ran the other way, and the burden lay on the suspect to clear himself.

The doctrine in its classical form

Woolmington v. Director of Public Prosecutions, [1935] AC 462, is where the philosophy became a rule of law. Reginald Woolmington shot his wife, from whom he was separated, and said the gun had gone off accidentally while he was threatening to kill himself. The trial judge directed the jury that once the killing was proved the law presumed malice and it was for the accused to show circumstances of excuse, which was the rule as it had stood since Foster's Crown Law. The House of Lords quashed the conviction. Viscount Sankey LC said that throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject to the defence of insanity and to any statutory exception. No attempt to whittle it down can be entertained.

Two things in that decision matter for this question. The first is that the House was willing to overturn two centuries of practice because the practice offended a principle. The second is the exception it wrote in with its own hand: "and subject also to any statutory exception". The golden thread was declared inviolable against the judges and expressly surrendered to the legislature, and everything that has happened since has happened through that opening.

Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808, states the Indian position at its strongest. The accused was convicted of murdering four members of a family, on evidence including an oral statement said to have been made to a witness and a letter to the police. The Supreme Court acquitted him, finding the evidence unreliable, and used the occasion to restate the principle: it is no doubt a matter of regret that a guilty person should escape, but it is far more important that the machinery of the criminal law should not be used to convict a man of an offence of which he is not guilty, because that shakes public confidence in the administration of justice itself. The case bears on the question because it shows the Indian Supreme Court making the same allocation of the risk of error that Blackstone made, and defending it on the ground of the system's legitimacy rather than the individual's comfort.

The counter-argument, and where the doctrine is under pressure

If the presumption is the outcome of a political philosophy, it follows that a legislature holding a different philosophy may lawfully weaken it. That is not a hypothetical. It is the main story of modern Indian criminal legislation.

It then held that a reverse burden does not absolve the prosecution of anything: the prosecution must first establish the foundational facts and make out a prima facie case, and only then does the legal burden shift; and the accused's burden, when it shifts, is discharged on a preponderance of probabilities and not beyond reasonable doubt. The case bears on this question because it concedes the philosophical point while limiting its practical damage: the presumption is demoted from a constitutional guarantee to a strong interpretive principle, and is then enforced through the doctrine of foundational facts.

The most direct Indian attack on the presumption came from within the system. The Committee on Reforms of Criminal Justice System, chaired by Justice V. S. Malimath, reported in 2003 that the adversarial method lets too many guilty escape, and recommended that the statutory standard of proof be lowered from proof beyond reasonable doubt to proof that is "clear and convincing", a standard between the civil and the criminal. The recommendation was not accepted, and it drew heavy academic criticism on the ground that it borrowed an inquisitorial remedy without the inquisitorial safeguards, in particular a judicially supervised investigation. That episode is worth naming in the answer because it shows the debate is not a foreign one.

Assessing the proposition

The honest conclusion is that the quotation is right about the origins and incomplete about the consequences. The presumption did come out of a political philosophy that valued individual liberty to the utmost, and its fate in India shows what that means: it is strongest where it is most classical, in an ordinary trial for an ordinary offence, and weakest wherever the legislature has decided that the difficulty of proof justifies shifting the risk of error back onto the accused.

But it does not follow that the presumption is merely one policy among others. The reason is the one Kali Ram gave. A system that convicts the innocent does not merely wrong that individual; it destroys the ground on which it asks everyone else to accept its verdicts. That argument is available even to someone who does not share the liberalism of Beccaria, and it is why the courts, having conceded that the presumption is not a fundamental right, have gone on protecting it through the requirement of foundational facts, the insistence that the accused's burden is only a preponderance, and the strict construction of every reverse-onus clause.

For full marks, cover: the question has two limbs and the second is worth more. Define decriminalisation properly, which means separating it from three things it is often confused with: non-enforcement, legalisation and reading down. Then take section 377 through its whole sequence, which is four steps and not two: the Delhi High Court in Naz Foundation, the Supreme Court reversing it in Suresh Kumar Koushal, Navtej Singh Johar reversing that, and the Bharatiya Nyaya Sanhita repealing the section outright. State the theoretical basis, which is the harm principle and the Wolfenden Report, and say what Navtej left standing, because that is the part most answers get wrong.

What decriminalisation means

Decriminalisation is the withdrawal of conduct from the catalogue of offences, so that conduct which the law once punished is no longer punishable at all. It is a decision that the criminal sanction, which is the most coercive instrument the State has, is the wrong instrument for this conduct.

The theoretical basis

The modern argument comes from John Stuart Mill's harm principle, that the only purpose for which power can rightfully be exercised over a member of a civilised community against his will is to prevent harm to others. Applied to the criminal law, that excludes offences whose only justification is the enforcement of a moral view.

The debate was joined in England after the Wolfenden Committee reported in 1957 that homosexual behaviour between consenting adults in private should no longer be a criminal offence, since there must remain a realm of private morality that is not the law's business. Lord Devlin answered that a recognised morality is as necessary to society as a recognised government, and that society may use the criminal law to preserve it. 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's argument confused the disintegration of a society with a change in its moral opinions. That exchange is the intellectual frame for everything that follows, and the Indian Supreme Court eventually decided it in Hart's favour.

Step two, 2013. In Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, decided on 11 December 2013, a two-judge Bench of the Supreme Court set that decision aside and restored section 377 in full. The reasoning was that the section carried a presumption of constitutionality, that it was facially neutral because it criminalised acts and not persons, that only a "minuscule fraction" of the population was affected, and that it was for Parliament and not the courts to delete the provision. The case bears on this question in a way the paper itself did not anticipate: at the date this paper was set, Koushal was the latest Supreme Court judgment on section 377, and it was a judgment of re-criminalisation. The premise of the question, that the latest judgment had decriminalised, was inverted at the moment it was printed.

Two supports made that possible and should be named. National Legal Services Authority v. Union of India, (2014) 5 SCC 438, had already recognised transgender persons as a third gender with the full range of fundamental rights, which sat uneasily beside Koushal. Then K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1, held privacy to be a fundamental right and, in doing so, expressly disapproved the reasoning in Koushal, saying that the rights of sexual minorities are not "so-called" rights and that discrete and insular minorities face grave dangers from majoritarian governments. Navtej followed almost inevitably.

Step four, 2024. The Bharatiya Nyaya Sanhita, 2023, in force from 1 July 2024, contains no section corresponding to section 377 at all. A full reading of the enacted Sanhita returns no offence of carnal intercourse against the order of nature. The provision was not read down or amended; it was simply not re-enacted.

What Navtej left standing, and what the Sanhita then removed

This is the part that separates a good answer from an average one.

The wider decriminalisation trend, and its opposite

Criticism

The case against judicial decriminalisation is that it is counter-majoritarian, and Koushal made it: the section was enacted by a competent legislature, and its repeal is a legislative choice. The answer Navtej gave is that constitutional morality binds the majority, and that fundamental rights are not subject to a headcount. The stronger version of the criticism is practical rather than democratic: a court can only read a provision down, and reading down leaves the text on the statute book, which is why section 377 continued to appear in charge sheets after 2018 and why its actual removal had to wait for Parliament.

The case against legislative decriminalisation by omission is what happened in 2024. Repealing a section that was doing two jobs, one of which the Court had already invalidated and one of which it had preserved, without enacting a replacement for the second, is not decriminalisation by policy but by inattention.

For full marks, cover: this is two questions joined by a provocation, and the second is the one the examiner is testing. Deal with necessity first, through Hobbes, Locke and Salmond, and show it historically as the movement from private vengeance to State prosecution. Then take the provocation seriously instead of dismissing it: set out the real case that criminal law harms society, from over-criminalisation, labelling, prison and selective enforcement, and answer it. Use Indian material, especially the undertrial figures and the reforms in the Bharatiya Nyaya Sanhita, so the answer is not a European essay. Reach a position.

Why justice has to be administered by the State

Salmond defined the administration of justice as the maintenance of right within a political community by means of the physical force of the State. Both halves of that definition carry weight. Right without force is advice; force without right is violence. The administration of justice is what joins them.

History records the same movement. The earliest response to wrong is private vengeance, and vengeance has no natural stopping point: the blood feud replaces one death with two. The first legal advance is to limit rather than to abolish it, which is what the lex talionis does. An eye for an eye is not a licence to take an eye; it is a prohibition on taking more than an eye. The second advance is composition, the payment of wergild or blood-money, which substitutes a transfer for a killing. The third is the appropriation of the wrong by the State, when the King's Peace makes an offence against a subject an offence against the Crown, and prosecution ceases to belong to the victim.

That last step is what makes criminal law criminal. Salmond's classification follows it: civil justice enforces the primary right or its substitute at the suit of the injured party, while criminal justice punishes at the suit of the State, and the sanction is not compensation to the victim but punishment of the offender. The residue of the older system survives in the compounding of offences and in the compensation provisions, section 357 of the Code of Criminal Procedure, now section 395 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Over-criminalisation. The criminal law has expanded far beyond conduct that harms identifiable victims, into regulatory, economic and moral offences, so that the ordinary citizen cannot know what is prohibited. Herbert Packer's The Limits of the Criminal Sanction argued that using the criminal law where the conduct is widespread, consensual and without a complaining victim produces predictable pathologies: enforcement becomes selective and therefore arbitrary, police are corrupted because there is no complainant to check them, and respect for the law generally is damaged. Douglas Husak's later work makes the constitutional version of the argument, that the State needs a justification for every offence it creates and almost never offers one.

Labelling. The sociological objection, from Lemert and Becker, is that criminal proceedings do not merely record deviance, they produce it. The conviction attaches a status that displaces the person's other identities, closes off lawful opportunities, and pushes him into the company of others so labelled. On that account the criminal law manufactures a part of the recidivism it then cites as proof that it is needed.

Collateral damage. A criminal law that is not enforced can still do harm. Section 377 of the Penal Code produced few prosecutions and a great deal of blackmail, and in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the Supreme Court accepted that the mere existence of the provision chilled the exercise of rights and legitimised discrimination. That is a judicial finding that a criminal law was harmful to a section of society while doing almost no enforcement work at all.

The answer to the charge

The charge is serious but it proves something narrower than it claims.

The decisive reply is that the comparison is never between criminal law and nothing. It is between criminal law and what replaces it. Where the State does not prosecute, private force does, and the historical record of private force is the feud, the lynching and the caste sanction. India's own experience of mob violence and of so-called encounter killings is the strongest available argument for a functioning administration of justice, because both are what happens when the public process is thought to be unavailable or too slow.

Indian law has moved on several of these. The Bharatiya Nyaya Sanhita, 2023 added community service to the list of punishments in section 4, which the Penal Code's section 53 never contained, and made it available for a set of minor offences. The Bharatiya Nagarik Suraksha Sanhita, 2023 carries the undertrial release provisions further than the Code of Criminal Procedure did. Attempt to suicide, which criminalised the distressed, has effectively gone: the Sanhita retains it in section 226 only where the attempt is made to compel a public servant. Each of these is a concession that the objection had force, made without conceding that criminal law is harmful as such.

Weighing it

Three decisions that put both halves of the question on the record

Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81, is the Indian authority for the charge. A newspaper report disclosed that thousands of undertrial prisoners in Bihar had been in custody awaiting trial for periods far exceeding the maximum sentence their alleged offences carried, some for longer than a decade, on charges that were often trivial. Many had never been produced before a court. The Supreme Court, treating the report as a petition, held that the right to a speedy trial is an integral and essential part of the fundamental right to life and personal liberty under Article 21, that free legal services to a poor accused are implicit in a reasonable procedure, and it ordered the release of the undertrials whose detention had already exceeded the possible sentence. The case bears on this question because it is a judicial finding that the criminal process, operating as it actually operates, inflicted greater harm on those people than any sentence lawfully available against them.

Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501, supplies the other half of the argument. The petition concerned cow-vigilante violence and a series of killings by mobs. The Supreme Court described lynching as an affront to the rule of law and issued preventive, remedial and punitive directions: a nodal officer not below the rank of Superintendent of Police in every district, patrolling of vulnerable areas, prompt registration of first information reports, a victim compensation scheme framed under section 357A of the Code of Criminal Procedure, and fast-track trials. It recommended that Parliament create a separate offence of lynching.

The case bears on this question because it shows precisely what fills the space when the administration of justice is thought to be absent, and because Parliament has now acted on it: section 103(2) of the Bharatiya Nyaya Sanhita, 2023 makes 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 punishable with death or imprisonment for life for every member of the group. That is new criminal law enacted as the remedy for private violence, which is the second limb of this question answered by the legislature itself.

For full marks, cover: the paper asks for two, and all three are written out below so that the choice is yours. Each note is a complete answer of about half a full question, which is what "any two" of a 25-mark question means: roughly twelve marks each. Do not write three. For each note, give the definition, the statutory or treaty basis, at least two worked cases and one criticism. The commonest failure in a short note is to define and stop.

(a) Inchoate Crime

An inchoate crime is one that is begun but not completed. The word comes from the Latin inchoare, to begin. The law punishes the accused not because harm has been done but because he has taken the community close enough to harm that intervention is justified.

Abetment. Sections 107 to 120 of the Penal Code, now sections 45 to 60 of the Sanhita, punish instigation, conspiracy coupled with an act, and intentional aiding. Abetment is inchoate in the sense that the abettor is liable whether or not the principal offence is committed, though the punishment differs.

Attempt. Section 511 of the Penal Code, now section 62 of the Sanhita, is the residuary provision, and specific attempts are separately punished, as attempt to murder was by section 307 and now is by section 109. The whole difficulty of attempt is locating the line between preparation, which is not punishable, and attempt, which is. Four tests have been used: the last-act or proximity test of R v. Eagleton, (1855) Dears CC 515, which asks whether the accused did the last act depending on himself; the equivocality test, which asks whether the act speaks for itself; the social-danger test; and the doctrine of locus poenitentiae, the opportunity to repent, which treats the accused as still in preparation for so long as he could have withdrawn.

State of Maharashtra v. Mohd. Yakub, (1980) 3 SCC 57, went further. Silver ingots were carried in jeeps to a lonely place near a creek and unloaded near the sea, and the sound of a mechanised vessel was heard. No silver had left India. The Supreme Court held this an attempt to smuggle, saying that what is needed is an act towards the commission of the offence that is proximate to it, and not necessarily the penultimate act. Contrast Malkiat Singh v. State of Punjab, AIR 1970 SC 713, where a truck carrying paddy was stopped thirty-two miles from the Delhi border in breach of an export restriction, and the Court held it mere preparation, because the driver could still have turned back. The two cases together mark the line.

Criticism. Inchoate liability moves punishment closer to thought. The equivocality test is criticised as unworkable because almost no act is unequivocal, and the proximity test as uncertain because proximity is a matter of degree. The counter-argument is that a criminal law that could act only after the harm had happened would be useless as prevention, which is the whole point of the category.

Two nineteenth-century cases show the tension. In R v. Prince, (1875) LR 2 CCR 154, the accused took an unmarried girl under sixteen out of the possession of her father, honestly and reasonably believing on good grounds that she was eighteen. The majority upheld the conviction, holding that the age element required no mens rea because the taking was in itself a wrongful act. In R v. Tolson, (1889) 23 QBD 168, a woman remarried in the honest and reasonable belief, after her husband had disappeared at sea, that he was dead; the Court for Crown Cases Reserved quashed her conviction for bigamy. The two are difficult to reconcile except on the moral-wrong theory, and Sweet v. Parsley, [1970] AC 132, in which a schoolteacher who sub-let a farmhouse was convicted of being concerned in the management of premises used for smoking cannabis without knowing of it, restored the presumption and reversed the drift. Lord Reid said that whenever a section is silent as to mens rea it is necessary to go outside the Act and enquire whether the presumption has been displaced.

Indian law follows the same structure and the two leading cases sit on either side of the line.

Nathulal v. State of Madhya Pradesh, AIR 1966 SC 43, is the case the other way. A foodgrains dealer at Dhar held a large stock of wheat without a licence, having applied for one and having sent his stock returns regularly to the authorities, who had not acted on the application. He was prosecuted under section 7 of the Essential Commodities Act, 1955. The Supreme Court acquitted him, holding that the presumption of mens rea may be rebutted only where it is absolutely clear that the object of the statute would otherwise be defeated, and that nothing in the Act made a licence-holder liable for a state of affairs he had honestly tried to regularise. The case bears on the topic because it shows that an economic and regulatory statute is not by itself enough: the court still asks whether excluding the guilty mind actually advances the statutory purpose.

(c) International Criminal Court

The International Criminal Court is a permanent treaty-based court, seated at The Hague, established by the Rome Statute adopted on 17 July 1998 and in force from 1 July 2002. It is the first standing international criminal tribunal, and it exists because the tribunals that preceded it, at Nuremberg and Tokyo and then for the former Yugoslavia and Rwanda, were all created after the event and for one situation only.

Jurisdiction. Article 5 gives the Court jurisdiction over four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Aggression was defined by the Kampala amendments of 2010 and the Court's jurisdiction over it was activated in July 2018, on narrower terms than for the other three. Jurisdiction is prospective only, from 1 July 2002 or from a State's later accession.

Complementarity. This is the Court's central principle and the answer to most questions about sovereignty. Under Article 17 a case is inadmissible where it is being investigated or prosecuted by a State with jurisdiction, unless that State is unwilling or unable genuinely to do so. The Court does not sit above national courts; it fills a vacuum left by them.

The Court at work. Prosecutor v. Thomas Lubanga Dyilo produced the first conviction in 2012, for conscripting and enlisting children under fifteen and using them to participate actively in hostilities in the Democratic Republic of the Congo, and it is significant for having treated the recruitment of child soldiers as a completed war crime in its own right. Prosecutor v. Ahmad Al Faqi Al Mahdi in 2016 was the first conviction for the war crime of intentionally directing attacks against religious and historic buildings, the mausoleums of Timbuktu, and the first case in which the accused pleaded guilty. Prosecutor v. Dominic Ongwen, decided in 2021, is important for rejecting a defence founded on the accused's own abduction as a child by the Lord's Resistance Army.

Criticism. The Court has been criticised for its early concentration on African situations, which led Burundi to withdraw in 2017 and the Philippines in 2019, and for the slowness and cost of its proceedings against the small number of convictions obtained. Its deeper problem is enforcement: it has no police force and depends entirely on States to execute its warrants. The episode in which Hungary announced its withdrawal in 2025 after declining to arrest a person subject to a warrant, and then reversed that withdrawal in 2026 and remained a State Party, illustrates both the fragility and the resilience of that dependence. The Court today has roughly one hundred and twenty-five States Parties, and the three permanent members of the Security Council that are not among them, together with India, account for a large part of the world's population.