LLM Group 5 Criminal Law and Criminal Administration Criminology 2023 Question Paper with Solutions

For full marks, cover: explain the theory by showing it at work rather than by listing what it contains, because a list is the very thing the theory is criticised for. Begin with the problem it was invented to solve; set out the method its authors actually used, which is the case history and the matched comparison; work a concrete example through the method; then give the classification of factors as the output of the method rather than as its statement; and close with the criticism and with what Indian law does with the theory.

The problem it was invented to solve

Between 1876 and about 1920 criminology proposed and lost a series of single causes. Lombroso's atavistic born criminal, from L'uomo delinquente, 1876, was tested by Charles Goring in The English Convict, 1913, who compared some three thousand convicts with control groups and found no anthropological criminal type once age and social class were controlled. Henry Goddard's claim that feeble mindedness caused crime did not survive the mass intelligence testing of army recruits. Bonger's economic determinism could not account for offending among the prosperous. Psychoanalytic explanations were unfalsifiable.

Cyril Burt applied the method at scale in The Young Delinquent, 1925. Comparing delinquent and non delinquent London schoolchildren, he identified about one hundred and seventy distinct contributory conditions and found that in the average case a considerable number were present together. His formulation, that delinquency is the product of a multiplicity of converging influences, is the classic statement.

Sheldon and Eleanor Glueck added the control in Unraveling Juvenile Delinquency, 1950. They matched five hundred delinquent boys with five hundred non delinquents on age, ethnic origin, measured intelligence and residence in underprivileged neighbourhoods, and compared the two groups across physical, temperamental, psychological and social measures. The matching is what makes the study still worth citing: it answers in advance the objection that the delinquents differed simply because they were poorer, since both groups were poor.

The factors as the method produces them

Biological and constitutional. Age, since offending peaks in late adolescence; sex; physique; health; a modest heritable component in antisocial conduct shown by twin and adoption studies; low autonomic reactivity.

Psychological. Intelligence, whose association with recorded delinquency is weak and largely explained by school failure and differential detection; temperament, in Eysenck's extraversion, neuroticism and psychoticism; impulsivity and low self control; early attachment failure, from Bowlby's forty four juvenile thieves in 1944; personality disorder and psychopathy; and mental illness, which contributes far less than public opinion assumes.

Familial. Supervision, discipline, conflict, neglect, parental criminality, family size and early separation, which the Cambridge Study in Delinquent Development found among the strongest childhood predictors of adult conviction.

Educational and economic. School failure and dropout; poverty and, more precisely, relative deprivation; unemployment; indebtedness.

The partial answer is its successor. Developmental criminology replaced the list with the risk factor paradigm, which measures conditions prospectively in a birth cohort, counts them and relates the count to later offending. That supplies the ranking the older approach lacked and demonstrates that risks combine more than additively, which is the one proposition the multiple factor writers asserted and could not prove.

What Indian law does with it

Indian law uses the method wherever a court must decide about a person rather than explain a population.

In sentencing generally, Mohd. Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287, decided on 6 May 1977, is the statement of principle. A man convicted under section 420 of the Indian Penal Code for cheating unemployed young men with false promises of work had been sentenced to three years' rigorous imprisonment. Krishna Iyer J. held that the pre sentence hearing carries a penological significance of far reaching importance, that the court must weigh the offender's antecedents, age, circumstances and prospects of reform and not the offence alone, and that punishment should be therapeutic rather than merely retributive; the sentence was reduced to eighteen months with directions for rehabilitation.

The theories that replaced it

A complete explanation should name what criminology did instead, because the multiple factor approach was not so much refuted as superseded.

Sutherland's differential association, in nine propositions in the 1947 edition of his Principles of Criminology, holds that criminal behaviour is learned in interaction within intimate personal groups, that what is learned includes techniques and the direction of motives and rationalisations, and that a person becomes delinquent because of an excess of definitions favourable to violation of law over definitions unfavourable to it, associations varying in frequency, duration, priority and intensity. It is a single mechanism through which many of the listed factors operate.

Merton's strain theory, from Social Structure and Anomie, 1938, holds that a society prescribing a common goal of material success while distributing legitimate means unequally generates pressure, with five adaptations: conformity, innovation, which is the criminal one, ritualism, retreatism and rebellion.

Conclusion. The multiple factor theory is best explained as a method rather than as a doctrine. Healy's case history, Burt's enumeration and the Gluecks' matched comparison were designed to answer a question about an individual, and the question they answer is which conditions combined in this case and which of them can be altered. As an explanation of crime it fails, because a list assigns no weights, states no mechanism and can be refuted by nothing, which is what Sutherland and Cohen said and what the risk factor paradigm has since partly repaired. As a method it is what Indian sentencing law requires at every point where a person is to be assessed, from the probation officer's report to the mitigation material without which, after Manoj, a court may not pass a sentence of death.

The Government of Maharashtra appointed a Commission of Inquiry under the Commissions of Inquiry Act, 1952 headed by Justice B. Lentin of the Bombay High Court. The Commission sat for roughly seventeen months, examined about one hundred and twenty witnesses, and reported in November 1987 in some 289 pages.

Its findings form a chain, and it is the chain rather than the tragedy that is examinable. The repacker had obtained its licence from the Food and Drug Administration without the diligence the Administration owed. The hospital's purchase machinery bought on price without regard to quality. The pharmacology panel which cleared the preparation had been influenced by payment. The drug testing laboratory lacked the capacity for its own function. And politicians, including serving and former health ministers, had interfered in the Administration's working to protect manufacturers of substandard drugs, the report drawing what it called the irresistible inference of corruption against the then Health Minister. Over thirty recommendations followed, on testing, inspection, licensing and hospital purchase.

Second, the commission that inquires. Section 4 gives it the powers of a civil court under the Code of Civil Procedure, 1908 to summon and examine on oath, compel discovery and production, receive affidavits, requisition public records and issue commissions. Section 5, where the notification so directs, adds power to require information, to enter and search premises and to seize documents, and makes proceedings judicial proceedings for sections 193 and 228 of the Indian Penal Code. Section 5A allows the use of investigating agencies and section 5B the appointment of assessors. Section 8 leaves procedure to the commission, section 8A saves the inquiry from a change in its constitution, and section 10A punishes acts calculated to bring it into disrepute. Every Lentin finding came out of section 4 and section 5, since the account lay in purchase files, test reports, committee minutes and a licence file.

Third, the witness who speaks. Section 6 provides that no statement made by a person in the course of giving evidence before a commission shall subject him to any civil or criminal proceeding or be used against him, except on a prosecution for giving false evidence. This is a trade: candour is bought and the price is the possibility of conviction. It is why a commission finds in eighteen months what a court does not find in eighteen years, and why what it finds is largely unusable afterwards.

What the report legally is

In Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, the Supreme Court settled the point. A commission had been appointed to inquire into the affairs of a group of companies, and its validity was challenged under Article 14 and as a usurpation of judicial power. The Court upheld the Act and the notification and held that a commission of inquiry is purely fact finding: it decides no dispute, delivers no judgment, imposes no liability, creates no right, and its report binds nobody. The Government may act on it, reject it or do nothing.

Two consequences run through the whole subject. A person adversely named suffers a serious injury with no remedy, which is why sections 8B and 8C exist. And the report is not evidence: a prosecution must be built from the beginning, and section 6 has removed the best material from it. T.T. Antony v. State of Kerala, (2001) 6 SCC 181, adds that a report cannot be used to register a second first information report on the same occurrence. State of Karnataka v. Union of India, (1977) 4 SCC 608, holds that the Union may appoint a commission into the conduct of a State's Ministers. And section 14(4) of the Lokpal and Lokayuktas Act, 2013 now bars a commission of inquiry into a matter complained of to the Lokpal.

What the report achieved despite binding nobody

Two things followed from the Lentin report that no statute required. The Health Minister left office, because a judicial finding of the irresistible inference of corruption, published and laid before the legislature, is a political fact whatever its legal status; and drug purchase and testing procedure in the State's hospitals was revised, because a documented account of how fourteen people died is difficult for an administration to ignore even when it is free to.

That is the general pattern of Indian commissions and it should be stated as such. A report binds nobody in law and operates entirely through publicity, which means its effect depends on public attention rather than on its findings. The Jain Commission interim report of 28 August 1997 brought down the Gujral Government within three months because attention was on it; the Srikrishna Commission report of 16 February 1998, on riots in which hundreds died, has been implemented only in part across three decades because attention moved. Nothing in the Act distinguishes the two cases.

What the Act cannot do, and what has been proposed

Three limits recur in every Indian assessment of this statute.

Conclusion. Read through the persons it governs, the Commissions of Inquiry Act, 1952 is generous to the commission, protective of the witness and of the person named, and almost silent about the public. It gave Justice Lentin the powers of a civil court and of search, and an immunity that made witnesses speak, and with them he traced fourteen deaths from a hospital bed back through a purchase committee and a licensing file to a Minister in seventeen months. It gave the Government the power to define the inquiry and to wind it up, and it gave the public a memorandum to be laid within six months and no more. That the truth was found completely and that very little followed from it is not a failure of the inquiry; it is the design of the statute, confirmed by Ram Krishna Dalmia.

Its central concept for Indian purposes is secondary victimisation. The first injury comes from the offender; the second from the process, through delay, hostile cross examination, repeated identification, insensitive medical examination and the leaking of identity. The second is the injury the system controls, and it is the one on which the field's practical demands rest.

Three decisions made those provisions duties. Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770: the power to award compensation is discretionary but the duty to apply the mind to it is mandatory, and a court declining must record reasons. Suresh v. State of Haryana, (2015) 2 SCC 227, decided on 28 November 2014: compensation under the scheme may be interim and at any stage and does not depend on conviction. Rudul Sah v. State of Bihar, (1983) 4 SCC 141: compensation may be awarded in a writ petition itself where the State has violated Article 21, since a right to move the Court would otherwise be a hollow guarantee.

One further limb belongs in a victimology note, because it is where Indian law is now moving. The plea bargaining chapter of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires that a mutually satisfactory disposition include compensation to the victim and requires the victim to be given notice and to take part in working it out. Whatever the merits of plea bargaining, that is the first place in Indian procedure where the victim is a party to the outcome rather than a witness to it, and it reflects the acceptance in principle of the victimological argument.

The controls are largely judicial, and each is attached to a case. In Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, where a young man taken into custody was found dead on a railway track the next morning, the Court awarded compensation under Article 32 and held that sovereign immunity is no defence to a public law claim for violation of a fundamental right. In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, it issued eleven requirements binding on every agency with power to arrest, including identification of the arresting officers, a memo of arrest attested by a relative or respectable local person, the right to have someone informed, entry in a diary, examination of injuries, medical examination every forty eight hours and the right to meet a lawyer during interrogation, non compliance being punishable as contempt. In Prakash Singh v. Union of India, (2006) 8 SCC 1, it issued seven structural directions: a State Security Commission, a minimum two year tenure for the Director General and for operational field officers, separation of investigation from law and order, a Police Establishment Board for transfers and postings, Police Complaints Authorities at district and State level, and a National Security Commission. Compliance has been partial and grudging, and saying so is the honest position.

(c) Ombudsman and the concept of Lokayukta

The Ombudsman is a Swedish office of 1809: an officer of the legislature, independent of the administration, who receives citizens' complaints of maladministration, investigates with access to files, and reports. Its four defining features are independence, direct and informal access, wide investigative power and no power to quash or punish. It exists to reach what judicial review cannot: delay, rudeness, inefficiency, arbitrariness within power and the lost file.

India took up the idea in the First Administrative Reforms Commission's interim report of 1966 under Morarji Desai, which recommended a Lokpal at the Centre and a Lokayukta in each State. Bills were introduced from 1968 and none passed until 2013.

Maharashtra acted first. The Maharashtra Lokayukta and Upa Lokayuktas Act, 1971 received assent on 30 November 1971 and the institution began functioning on 25 October 1972, the first State ombudsman in India; its jurisdiction did not extend to the Chief Minister and its recommendations were advisory.

The record is where the marks are. The first Lokpal was appointed only in March 2019, more than five years after commencement, because the Selection Committee could not be constituted for want of a recognised Leader of the Opposition. State Lokayuktas differ widely in powers, and in most States the Chief Minister remains outside the jurisdiction. Maharashtra's own replacement statute, the Maharashtra Lokayukta Bill, 2022, which expressly covers the Chief Minister and the Council of Ministers, was passed by the Assembly in December 2022 and the Council in December 2023, received Presidential assent subject to three recommended amendments which were passed in December 2025, and had not been brought into force at the time of writing.

Conclusion. The three notes are about the three people the system tends to forget: the person injured by the offence, the person injured by the police, and the person injured by the administration. Indian law has answered the first substantially on reparation and hardly at all on information; it has answered the second almost entirely through the courts, from Nilabati Behera to Paramvir Singh Saini, because the political branches did not; and it has answered the third by statute in 2013 and then taken five years to appoint the officer, while Maharashtra, the first State to create the office in 1972, has a replacement Act passed in 2022 and still not notified.

India's official recognition came in the Santhanam Committee report of 1964, which added that here the businessman's offence usually requires a public servant's cooperation, and in the Law Commission's 47th Report, 1972, which described the class by three features: the motive is avarice rather than passion, the background is non emotional so there is no relationship between offender and victim, and the victim is the State or the consuming public.

The Indian sectors are stable. Tax evasion and the parallel economy; adulteration of food and drugs, which kills; bank and credit fraud, including the diversion of borrowed funds by promoters; securities manipulation and insider trading; public procurement conspiracies; professional deviance; hoarding and profiteering in essential commodities; and, in the last decade, mass digital frauds which are white collar in method and mass in reach.

Difficulty four: the beneficial owner is hidden. Companies, trusts, nominees and layered transactions separate the person who signs from the person who benefits, so proving who gained is a case in itself, and it usually requires records in another jurisdiction.

Difficulty five: proof requires expertise the system lacks. A forensic accountant, a valuer and a securities specialist are needed to explain what a set of entries means, and Indian investigating agencies borrow such expertise rather than employ it, so the investigating officer is often unable to explain his own case.

Difficulty six: delay is a defence. The accused can fund litigation on every interlocutory question, and in a documentary case the witnesses are officials who transfer, retire and forget. The 2G spectrum prosecution, in which the special court acquitted all the accused on 21 December 2017 and the investigating agency's appeal was admitted by the Delhi High Court only in 2024, is the standing illustration.

One counter fact, which shows the way out

White collar offending leaves a record. Traditional crime often leaves nothing but a witness; this class leaves ledgers, approvals, transfers and audit trails. Everything that has actually worked in India exploits that fact and avoids the difficulties above by not requiring the transaction itself to be proved.

Section 13(1)(b) of the Prevention of Corruption Act makes intentional illicit enrichment an offence and Explanation 1 presumes it from possession of resources disproportionate to known sources of income which the public servant cannot satisfactorily account for, punishable under section 13(2) with four to ten years. The prosecution proves arithmetic over a check period; the explanation is the accused's to give. Section 20 does the same for the trap case, presuming that an undue advantage proved to have been accepted was accepted as a motive or reward.

Build capacity rather than offences. Forensic accountants embedded in the investigating agency; specialist prosecutors; and a lead agency doctrine, since a single set of facts can presently be investigated by the Central Bureau of Investigation, the Enforcement Directorate, the Serious Fraud Investigation Office, the tax department, the securities regulator and the State police, with parallel proceedings multiplying stays and diluting responsibility.

Prefer the instrument that reaches the gain. Disgorgement, debarment, attachment and confiscation, disqualification of directors under the Companies Act, 2013 and of defaulting promoters under section 29A of the Insolvency and Bankruptcy Code, 2016, all operate faster than a trial and none of them requires the invisible transaction to be proved in the ordinary way.

Create the record in advance. Beneficial ownership registers, mandatory audit trails in public procurement and integrity pacts convert an unprovable transaction into a documentary one before the offence occurs.

And fix the trial. Dedicated courts, day to day hearing and proof of electronic records by certificate under section 63 of the Bharatiya Sakshya Adhiniyam, 2023 would remove more delay than any amendment to the definitions has removed in thirty years.

In Sanjay Chandra v. CBI, (2012) 1 SCC 40, arising from the 2G spectrum prosecution itself, the Court granted bail to accused who had been in custody for months in a case involving thousands of documents and hundreds of witnesses with no early trial in prospect. It held that the object of bail is neither punitive nor preventive, that the seriousness of the charge is not by itself a ground for refusal, and that the presumption of innocence is not weakened by the size of the sum alleged.

Both are good law and the tension between them is honest rather than accidental. The first reasons from the harm the conduct does to the community; the second from the fact that a trial which will take fifteen years cannot be preceded by fifteen years of custody. In practice the second prevails at the bail stage and the first in the rhetoric of judgments on merits.

For full marks, cover: organise the Act around the amendment of 2018, since that is what dates an answer: state what the law was, what it became and why, provision by provision. Then take the Antulay chain, which is four stages with four citations, and end with the outcome in a single flat sentence. Close by connecting the two, because Antulay is the standing illustration of the procedure defeating the substance.

The Act before and after 2018

The Prevention of Corruption Act, 1988 consolidated the Prevention of Corruption Act, 1947 with sections 161 to 165A of the Indian Penal Code and repealed those sections, which is why the Bharatiya Nyaya Sanhita, 2023 contains no general offence of a public servant taking a bribe. The Prevention of Corruption (Amendment) Act, 2018, in force from 26 July 2018, rewrote the offences, largely to bring Indian law into line with the United Nations Convention against Corruption, which India ratified in 2011.

One row of that table is a trap and is worth pausing on. The increase in the punishment for criminal misconduct, from one to seven years to four to ten years, is almost universally attributed to the 2018 amendment and does not come from it. The words "four years" and "ten years" were substituted in section 13(2) by section 58 and the Schedule to the Lokpal and Lokayuktas Act, 2013, with effect from 16 January 2014, the day that Act came into force; the same Schedule raised the punishment for an attempt under section 15 from up to three years to two to five years. What the 2018 amendment did to section 13 was to narrow the offence, deleting section 13(1)(d) and confining misconduct to misappropriation and illicit enrichment, while the punishment it carries had already been raised four years earlier.

The rest of the scheme

Coverage. "Public servant" in section 2(c) extends far beyond government service, and in Central Bureau of Investigation v. Ramesh Gelli, (2016) 3 SCC 788, decided on 23 February 2016, the Supreme Court held that the chairman, managing director and executive director of a private banking company are public servants, reading section 2(c) with section 46A of the Banking Regulation Act, 1949.

The remaining offences. Section 11, obtaining a valuable thing without consideration from a person concerned in business transacted by the public servant, six months to five years. Section 12, abetment, three to seven years. Section 14, habitual offender, five to ten years. Section 15, attempt at misappropriation, two to five years. Section 16 requires the court, in fixing a fine, to take into account the pecuniary advantage obtained.

Stage one, on sanction: R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183, decided on 16 February 1984. A Constitution Bench held that a Member of the Legislative Assembly is not a public servant within section 21 of the Indian Penal Code, so no sanction was required to prosecute him as such, and that sanction referable to the office of Chief Minister was unnecessary once he had left it. In the same judgment, to expedite a prosecution already three years old, the Court withdrew the case from the Special Judge and directed the Bombay High Court to try it.

Stage two, on the forum: A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, decided on 29 April 1988. Seven judges held that direction to have been made without jurisdiction and without hearing the accused; that it deprived him of the trial by a special Judge required by the Criminal Law Amendment Act, 1952 and of the consequential right of appeal; and that it therefore violated Articles 14 and 21. Applying actus curiae neminem gravabit, that an act of the court shall prejudice no man, the Court held that it has both the power and the duty to correct its own error, set aside all proceedings taken under the 1984 direction and remitted the case to the Special Judge.

The lesson is the one the Indian record repeats. The Act's substantive provisions are strong, and the two presumptions in section 20 and Explanation 1 to section 13(1)(b) solve its hardest evidentiary problem. What defeats prosecutions is what happens before the presumptions can operate.

The presumptions, which are where the Act's strength lies

Two presumptions answer the evidentiary problem that would otherwise make a bribery prosecution impossible, and they should be worked rather than named.

Section 20 provides that where it is proved that a public servant accepted or attempted to obtain an undue advantage, it shall be presumed, unless the contrary is proved, that he accepted it as a motive or reward for the improper performance of a public duty. The prosecution therefore proves only acceptance, which is what a trap is designed to capture; the corrupt purpose, which exists only in the accused's mind, is presumed. The presumption is rebuttable, and on a preponderance of probabilities rather than beyond reasonable doubt, but something must be led.

Conclusion. The Prevention of Corruption Act, 1988 as it now stands reaches the taker under section 7, the middleman under section 7A, the giver under section 8, the commercial organisation under sections 9 and 10 and the officer who consented, punishes criminal misconduct with four to ten years, and gives the prosecution two presumptions to prove its case. Against that, it requires approval under section 17A before an investigation may begin and sanction under section 19 before a court may take cognizance, and it has lost section 13(1)(d) altogether. Antulay's case is what that architecture produces: a Chief Minister who resigned on a High Court's finding in January 1982, three Constitution Bench judgments on sanction, on the Supreme Court's power to correct itself and on speedy trial, and an acquittal for want of evidence more than fifteen years later.

Its jurisdiction is over newspapers, news agencies, editors and working journalists, and no further. Television, radio and digital news are outside the Act, and that is the first thing to say about a role in curbing unethical journalism in 2026, because that is where most Indian news is consumed. Broadcast content is regulated by the industry's own bodies and by the Cable Television Networks (Regulation) Act, 1995; digital news by the rules made under the Information Technology Act, 2000.

Its composition under section 5 makes it a body of the profession rather than of the State. A Chairman and twenty eight other members: the Chairman nominated by a committee of the Chairman of the Rajya Sabha, the Speaker of the Lok Sabha and a member elected by the Council, by convention a retired judge of the Supreme Court; thirteen working journalists of whom six are editors; six representing owners and managers; one from news agencies; three nominated by the University Grants Commission, the Bar Council of India and the Sahitya Akademi; and five Members of Parliament.

Under section 15(2) it cannot compel a journalist to disclose the source of any news or information. This is the strongest source protection in Indian statute law, stronger than anything a court provides, and it is part of the Council's role in defending journalism as well as disciplining it, as is section 15(4), which permits it to make observations on the conduct of any authority including Government.

Sanction

Under section 14, after hearing the newspaper, news agency, editor or journalist, the Council may warn, admonish or censure, and may require the newspaper to publish particulars of the inquiry. That is the whole of its coercive power. It cannot fine, cannot suspend publication, cannot cancel a registration and cannot compensate the person wronged.

What has actually curbed paid news came from election law rather than press law. The Election Commission has since 2010 operated Media Certification and Monitoring Committees at district and State level to identify paid news during elections and to add the expenditure to the candidate's account. In Ashok Shankarrao Chavan v. Madhavrao Kinhalkar, (2014) 7 SCC 99, decided on 5 May 2014, the Supreme Court held that the Election Commission has jurisdiction to inquire into the correctness of a return of election expenses and to disqualify a candidate under section 10A of the Representation of the People Act, 1951 for failing to lodge a true and correct account. Paid news which is not accounted for can therefore end a political career, though it still cannot be punished as such.

The three limits

Remedial: censure and nothing more. Jurisdictional: print alone, in a country whose news is mostly broadcast and digital. Compositional: six of twenty eight members represent the owners the Council must censure.

The reform argument, both ways

The case for strengthening the Council is straightforward. Give it jurisdiction over broadcast and digital news, so that the regulator covers the medium where the audience is; and give it a graded ladder of sanctions between censure and nothing, so that a publication which ignores an adjudication faces a consequence. Successive Chairmen have asked for both.

The attempt to regulate digital news shows the same tension in modern form. Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 applied a code of ethics to publishers of news and current affairs and created a three tier structure ending in an inter departmental committee under the Government. On 14 August 2021, in AGIJ Promotion of Nineteenonea Media Pvt. Ltd. v. Union of India, the Bombay High Court stayed Rules 9(1) and 9(3) as prima facie ultra vires the parent Act; on 16 September 2021, in Digital News Publishers Association v. Union of India, the Madras High Court noted that the order had pan India effect. The objection was not to the standards but to who would ultimately enforce them.

What the Council does well, which is usually left out

A discussion should record what works, and three things do.

The right of reply and the printed correction. The bulk of the Council's caseload is inaccuracy, distortion, failure to verify and refusal to publish a rejoinder, and here an adjudication requiring the newspaper to publish the finding is a real remedy, because the asset in question is the newspaper's standing with its own readers.

Conclusion. As a regulator of unprofessional and unethical journalism the Press Council has a good code, real investigative powers and no teeth, over a shrinking part of the press. It works where publication of its finding is the remedy, which is inaccuracy, unfairness, communal insensitivity and intrusion, and it does not work where money is at stake, which is paid news, as the fate of its own sub committee report shows. The abuses that have actually been curbed were curbed by other institutions: postponement orders under Sahara, contempt in R.K. Anand, and disqualification for an untrue expenditure return under Ashok Chavan. Whether the Council should be given the power it lacks is a genuine question rather than an obvious one, because the same power in a captured body would be worse than the abuses it would cure, which is what Ajay Goswami and the stay on the 2021 Rules both reflect.

The classical school is therefore best understood as a demand for legality rather than as a theory of causation. It assumed, without investigating, that people are free, rational and hedonistic and choose crime by weighing gain against pain, and it put its energy into designing a system in which the calculation would come out right.

Beccaria

Cesare Beccaria published Dei delitti e delle pene anonymously in 1764 at the age of twenty six. Its foundation is the social contract: individuals surrendered the least portion of liberty necessary to secure the rest, and the sovereign's right to punish extends no further than the defence of that deposit, so every punishment beyond necessity is tyranny rather than justice.

Bentham

Jeremy Bentham gave the same programme an explicit calculus in An Introduction to the Principles of Morals and Legislation, 1789. Law rests on utility, the greatest happiness of the greatest number, and the offender is a calculator acting on the balance of pleasure and pain. His felicific calculus measures pleasures and pains by intensity, duration, certainty, propinquity, fecundity, purity and extent, from which his rules follow: the punishment must outweigh the profit of the offence, must be adjusted so that the offender is induced to choose the lesser offence, and must be no greater than necessary. His panopticon, a prison designed so that inmates might be observed at any time without knowing when, is the institutional expression of certainty.

The neo classical correction

The French Penal Code of 1791 applied the classical scheme in its pure form, attaching a fixed penalty to each offence with no judicial discretion at all, and it became unworkable within a generation because it required a court to treat a child, a lunatic, a first offender and a hardened recidivist identically once the act was proved.

The legacy in Indian law

Indian penal law is classical in architecture. Offences are defined in advance with precision, each carries a prescribed punishment graded to the harm, and the definition applies to everybody. Article 20(1) of the Constitution is Beccaria's demand for prospective law in constitutional form: no conviction except for violation of a law in force at the time of the act, and no penalty greater than that which might have been inflicted under the law then in force. The Indian Penal Code of 1860, drawn from Macaulay's Draft of 1837 with its illustrations attached to each definition, is a classical instrument in every respect, and the Bharatiya Nyaya Sanhita, 2023 keeps that architecture.

Capital sentencing shows the two schools contending in the same jurisdiction. Bachan Singh v. State of Punjab, (1980) 2 SCC 684, upheld the death penalty by a majority, confined it to the rarest of rare case and required the weighing of aggravating and mitigating circumstances relating both to the crime and to the criminal, with a pronounced leaning against the extreme penalty; that is a neo classical instruction. Machhi Singh v. State of Punjab, (1983) 3 SCC 470, reduced the inquiry to five categories drawn from the nature of the crime, and in the practice that followed the criminal disappeared behind the crime, which is the classical school reasserting itself. Manoj v. State of Madhya Pradesh, (2023) 2 SCC 353, corrected the drift, requiring the State to gather and place psychiatric, psychological, social history and jail conduct material before the court before sentence.

What modern evidence has done to the classical claims

Beccaria's central empirical claim has been tested and largely vindicated. Research on deterrence consistently finds that certainty of detection deters far more effectively than severity of punishment, which is why raising sentences has repeatedly failed to reduce offending, in India as elsewhere, and why hot spot policing, which raises perceived certainty, works.

The criticism of each, stated fairly

Against the classical school four objections are made and three of them stand. It offers no explanation of offending beyond the assertion of choice. It assumes a uniform rationality that observation contradicts, since much crime is impulsive or intoxicated. Formal equality before a fixed penalty produces substantive inequality, the same fine being nothing to one man and ruin to another. The fourth objection, that deterrence does not work, does not stand: the evidence supports Beccaria's version of the claim, that certainty deters, while refuting the version he did not make, that severity does.

Against the neo classical school the objection is that it is a set of concessions without a theory. It admits exceptions to free will without explaining what determines conduct where the exceptions do not apply, and it has no principle for deciding how far the exceptions should run: why seven years and not eight in section 20 of the Bharatiya Nyaya Sanhita, and why an insane person is excused and an intoxicated one is not. The answer, that these are practical accommodations reached by legislatures rather than deductions from a premise, is honest and is also the reason positivism was able to displace both schools in the academic literature while leaving the codes untouched.