LLM Group 5 Criminal Law and Criminal Administration Penal Laws 2024-25 Question Paper with Solutions

As enacted, the Act was modest. It dealt only with unlawful associations, and it created a small group of offences. It said nothing about terrorism, because terrorism was dealt with by separate temporary statutes: the Terrorist and Disruptive Activities (Prevention) Act, 1987, which lapsed in 1995, and the Prevention of Terrorism Act, 2002.

The Prevention of Terrorism Act was repealed by the Prevention of Terrorism (Repeal) Ordinance promulgated on 21 September 2004, replaced by the Prevention of Terrorism (Repeal) Act, 2004. On the very same day, 21 September 2004, the Unlawful Activities (Prevention) Amendment Act, 2004 inserted Chapters IV, V and VI into this Act. Nothing was abolished. The substance of the repealed statute was moved into a permanent Act, and the political cost of an emergency terrorism law was avoided by putting terrorism inside an ordinary one. That is the first and most important critical observation about the Act.

Section 10 punishes membership of an unlawful association, taking part in its meetings, contributing to it or receiving from it, with imprisonment up to two years and fine. Section 13 punishes taking part in, committing, advocating, abetting, advising or inciting an unlawful activity, with imprisonment up to seven years and fine. Section 14 makes every offence under the Act cognizable.

Layer two: terrorism, added in 2004

Section 15 defines a terrorist act as any act done with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India, or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, by explosives, firearms, lethal weapons, poisonous or noxious gases or other hazardous substances, causing or likely to cause death, injury, loss or damage to property, or disruption of essential supplies or services. The words "economic security" and the limb on high quality counterfeit currency were added in 2013.

Layer three: designation of individuals, added in 2019

Chapter VI as originally inserted allowed the Central Government to add an organisation to a Schedule as a terrorist organisation. The Unlawful Activities (Prevention) Amendment Act, 2019 substituted the chapter heading with "Terrorist Organisations and Individuals" with effect from 14 August 2019 and amended section 35 so that the Central Government may add the name of an individual to the Fourth Schedule, on a belief that the individual is involved in terrorism.

The only remedy is section 36, an application to the Central Government for denotification, and section 37, a Review Committee headed by a person who is or has been a High Court Judge. There is no prior hearing, no charge, no trial and no time limit. The 2019 amendment also allowed an officer of the National Investigation Agency of the rank of Inspector to investigate offences under Chapters IV and VI, which section 43 previously reserved to a Deputy Superintendent of Police.

The procedure, which is where the Act bites

Section 46 makes evidence collected through interception under the Indian Telegraph Act, 1885 or the Information Technology Act, 2000 admissible notwithstanding the Evidence Act.

Union of India v. K.A. Najeeb, (2021) 3 SCC 713, is the counterweight and is the case a student must be able to state. The respondent was accused of facilitating an attack in which a college professor's hand was severed, and had spent more than five years in custody with the trial nowhere near conclusion. The Kerala High Court granted bail; the National Investigation Agency appealed. The Supreme Court dismissed the appeal and held that section 43D(5) does not per se oust the power of a constitutional court to grant bail where there has been a violation of Part III of the Constitution, and that where trial is unlikely to conclude within a reasonable time, the right to a speedy trial under Article 21 prevails over the statutory embargo. In 2024 the Court added that Watali is confined to its facts and cannot be invoked to keep an undertrial in custody indefinitely.

The criticism

The first and most serious criticism is that the Act punishes on suspicion for years without a trial. Section 43D(2) permits 180 days of custody before a charge sheet, section 43D(5) as read in Watali makes bail almost unobtainable at the outset, and the trials are long. Najeeb supplies a remedy but a constitutional one: the accused must reach a High Court or the Supreme Court and demonstrate that delay has already violated Article 21. That is a remedy for the well represented.

The second criticism is definitional. Unlawful activity in section 2(1)(o) includes causing or intending to cause disaffection against India, a phrase taken from the sedition provision and never given the Kedar Nath Singh incitement limit in this statute. Section 15 covers acts "likely to threaten" the economic security of India. Neither phrase has an outer edge that a citizen can locate in advance.

The third criticism is that the 2019 amendment designates individuals as terrorists without process. An organisation at least gets the section 4 Tribunal before a declaration takes effect; an individual gets nothing until after designation, and then only an application to the very Government that designated him.

Conclusion. The Unlawful Activities (Prevention) Act, 1967 began as a narrow law about associations and became, by the additions of 2004 and 2019, India's permanent anti terrorism statute. Its substantive provisions in sections 15 to 21 are conventional; what distinguishes it is Chapter VII, where 180 day custody, an inverted bail test, presumptions and a sanction requirement combine to make the pre-trial stage the whole of the punishment for most accused.

The Supreme Court has held the two ends of that debate at once: Watali makes the statutory bail test almost unanswerable on the material, Najeeb holds that Article 21 overrides it once delay becomes unconscionable, and Arup Bhuyan in 2023 restored liability for bare membership. A critical examination must conclude that the Act's defect is not its definition of terrorism but its allocation of time, and that the remedy the Court has supplied is constitutional rather than statutory, which is another way of saying that Parliament has not supplied one.

The distinction matters for this answer, because the determining factors are studied on the wider category while the legislative response addresses only the narrower one. Much of what causes delinquency is therefore outside the reach of the Juvenile Justice Act altogether, and that is the critical point to make at the end.

The determining factors

Individual and developmental factors. The starting point of the modern law is neurological rather than moral. Adolescent brain development, in particular the late maturation of the prefrontal cortex which governs impulse control and the appreciation of consequences, means that a person of sixteen may possess adult reasoning in the abstract and lack adult self regulation under stress or peer pressure. This is the finding that the Supreme Court relied on in Salil Bali v. Union of India, (2013) 7 SCC 705, when it declined to lower the age of juvenility, holding that eighteen had been fixed after understanding the psychology and behavioural patterns of children below that age. Learning disability, untreated mental illness and substance dependence are the other individual factors most consistently found.

Neighbourhood and association. Two classical theories account for most of what is observed. Shaw and McKay's social disorganisation theory explains why delinquency concentrates in particular localities rather than particular families: where a neighbourhood cannot exercise informal social control, delinquency persists in it across generations of residents. Sutherland's differential association theory explains the mechanism: criminal behaviour is learned in intimate personal groups, and a child becomes delinquent when definitions favourable to violation of law exceed those unfavourable. In Indian cities this is the child recruited by a local gang, and it is precisely the population that section 2(1)(f) of the Maharashtra Control of Organised Crime Act, 1999 describes from the other end.

The direction of travel was one way until 2015. Every stage from 1850 to 2000 moved further from punishment and closer to welfare, and the driving factor identified at each stage was the same one: contamination. The Apprentices Act and the Reformatory Schools Act were about keeping the child out of adult prison; the provincial Children Acts about keeping him out of the adult court; the 1986 and 2000 Acts about keeping him out of the adult record.

The 1986 Act's age rule shows how a legislative approach can itself be a determining factor. By fixing sixteen for boys and eighteen for girls, it delivered a boy of seventeen to the ordinary criminal courts. The 2000 Act corrected that in order to comply with Article 1 of the Convention on the Rights of the Child, which India ratified on 11 December 1992, and which defines a child as every human being below eighteen. Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551, then settled the transitional question by holding that the relevant date for determining juvenility is the date of the offence, not the date of production before the court.

The 2015 Act does contain preventive machinery: section 43 open shelters, section 44 foster care, section 45 sponsorship, section 46 after care for up to three years, section 106 State Child Protection Societies and District Child Protection Units, and section 107 Child Welfare Police Officers and Special Juvenile Police Units in every district. In practice these are the least funded and least implemented parts of the Act, and the parts nobody litigates. The Integrated Child Protection Scheme, now the Mission Vatsalya, carries most of the burden administratively rather than by statute.

Other statutes carry more of the preventive weight than the Juvenile Justice Act does. The Right of Children to Free and Compulsory Education Act, 2009 addresses school dropout, which is the single most consistent predictor. The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, as amended in 2016, addresses the child in the workplace. The Protection of Children from Sexual Offences Act, 2012 addresses the victimisation that frequently precedes offending.

What the decided cases added that the statutes did not

Three judgments did more to shape the Indian response than any amendment between 1986 and 2000, and an answer that omits them treats the subject as though it were purely legislative.

Ashwani Kumar Saxena v. State of M.P., (2012) 9 SCC 750, decided on 13 September 2012, governs how age is actually found. The Court held that where the documents prescribed by the statute and the Rules are produced, a Board or a court must act on them and must not embark on a roving inquiry or a hyper technical examination; a medical determination such as an ossification test is permissible only where those documents are shown to be fabricated or manipulated. That order of preference is now written into section 94(2) of the 2015 Act, which puts the school or matriculation certificate first, the birth certificate from a corporation, municipality or panchayat second, and a medical test only in the absence of both, to be completed within fifteen days.

The pattern is worth stating as a finding. On every occasion when the legislative approach left a gap, whether in enforcement, in the reckoning date or in proof of age, the correction came from the Supreme Court first and was written into the statute afterwards, which is exactly what happened again with Shilpa Mittal and section 2(54)(b).

For full marks, cover: the question has two halves and the second half is where most candidates lose marks by writing a paragraph of generalities. Classify the offences first, by victim rather than by section number, so that the list has a shape. Then give the challenges an equal share of the answer and make each one specific: name the section, the rule of evidence or the treaty mechanism that fails, and say why. A challenge stated without the provision it defeats is not an answer.

What the Act calls a cyber crime

The Information Technology Act, 2000 does not use the expression cyber crime anywhere. It creates two distinct kinds of liability, and keeping them apart is the first mark.

Classifying the offences

Against the person. Section 66C punishes identity theft, the fraudulent or dishonest use of the electronic signature, password or any other unique identification feature of another person, with three years and fine up to one lakh. Section 66D punishes cheating by personation using a computer resource, which is the section under which most online fraud is charged. Section 66E punishes intentional capture, publication or transmission of the image of a private area of a person without consent, in circumstances violating privacy. Section 67 punishes publishing or transmitting obscene material in electronic form; section 67A material containing a sexually explicit act; section 67B material depicting children, and uniquely reaches the person who collects, seeks, browses or downloads.

Against property. Section 65 punishes knowing or intentional concealment, destruction or alteration of computer source code required to be kept by law, with three years or fine up to two lakh. Section 66 read with section 43 covers hacking, data theft and denial of service. Section 66B punishes dishonestly receiving or retaining a stolen computer resource or communication device.

What is no longer here. Section 66A, which punished the sending of offensive messages, was struck down in Shreya Singhal v. Union of India, (2015) 5 SCC 1, and was finally omitted from the statute book by the Jan Vishwas (Amendment of Provisions) Act, 2023 with effect from 30 November 2023. Sections 72 and 72A, breach of confidentiality and disclosure in breach of a lawful contract, were decriminalised by the same Act and now carry only monetary penalties of five lakh and twenty five lakh rupees respectively.

The offences that are not in this Act at all

A large part of cyber crime is prosecuted under the general penal law, because the Information Technology Act creates no offence of theft, cheating or forgery as such. Online cheating is charged under section 318 of the Bharatiya Nyaya Sanhita, 2023, cheating by personation under section 319, criminal breach of trust under section 316, extortion, which is what a ransomware demand is, under section 308, stalking including online stalking under section 78, and defamation under section 356. Section 335 of the Sanhita expressly defines making a false document to include a false electronic record, and section 336 makes forgery of it punishable. Section 111 of the Sanhita now lists cyber crimes among the activities that can constitute organised crime.

The challenges

Jurisdiction. An offence may be committed by a person in one country, on a server in a second, against a victim in a third. Section 75 answers part of this by applying the Act to an offence committed outside India by any person, irrespective of nationality, where the conduct involves a computer, computer system or computer network located in India. What section 75 cannot do is deliver the accused. Extradition requires a treaty and dual criminality, and mutual legal assistance requests to the country hosting the data routinely take many months, by which time the logs have been overwritten.

Attribution and anonymity. The offences are all drafted against a person, and the internet supplies an address. Virtual private networks, proxy chains, spoofed numbers and mule bank accounts break the link between the conduct and the accused. Section 69 gives a power of interception, monitoring and decryption, and section 69B a power to monitor traffic data for cyber security, but both operate prospectively and require an order; neither retrieves the identity behind conduct that has already occurred.

Reporting and under counting. Most cyber crime is never reported, because the loss is small relative to the effort and because the victim is often embarrassed. The National Cyber Crime Reporting Portal and the Indian Cyber Crime Coordination Centre exist to reduce that friction, and CERT-In under section 70B receives incident reports from bodies corporate, but the reported figure remains a fraction of the real one, which makes evidence based policy very difficult.

Intermediary liability and the cost of over removal. Section 79 exempts an intermediary from liability for third party content subject to due diligence and expeditious removal on actual knowledge. Shreya Singhal read down section 79(3)(b) so that actual knowledge means a court order or a Government notification, precisely because an intermediary asked to judge lawfulness for itself will remove lawful speech to be safe. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have re-imposed a compliance burden with short takedown timelines, and the tension Shreya Singhal identified has returned.

Conclusion. Cyber crime under the Information Technology Act, 2000 is a two tier scheme: section 43 makes unauthorised interference a civil wrong sounding in compensation, and section 66 converts the same conduct into an offence when it is done dishonestly or fraudulently, with specific offences in sections 65, 66B to 66F, 67 to 67C, 70 and 71 to 74 above it and section 66F reaching imprisonment for life. What the Act does not cover, cheating, forgery, extortion and defamation online, is supplied by the Bharatiya Nyaya Sanhita, and Sharat Babu Digumarti fixes the boundary in favour of the special law. The challenges are not principally definitional. They are jurisdiction across borders that section 75 cannot cure, attribution against deliberate anonymity, and an evidentiary rule in section 63 of the Bharatiya Sakshya Adhiniyam which, after Anvar and Arjun Panditrao, is unforgiving of the investigative practice that Indian police stations actually have.

Object and setting

The Maharashtra Control of Organised Crime Act, 1999 is a State law, Maharashtra Act XXX of 1999. It was enacted because the existing legal framework, meaning the Indian Penal Code and the Code of Criminal Procedure, was found inadequate to curb or control the menace of organised crime, and because the Terrorist and Disruptive Activities (Prevention) Act had lapsed in 1995 and had in any event been aimed at a different problem. The mischief is the syndicate: an enterprise in which the person who profits is insulated from the act, the witnesses are intimidated, and each individual offence looks ordinary when charged alone.

Its constitutionality was settled in Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, (2010) 5 SCC 246, where the Supreme Court held that in pith and substance the Act relates to public order and police, Entries 1 and 2 of the State List, and that the reference to promoting insurgency in the definition of organised crime did not make it a law on terrorism nor render it repugnant to any central law. The Act was subsequently extended to Delhi.

The gate in section 2(1)(d) is the Act's most distinctive feature and the one it is worth spending a sentence explaining. MCOCA does not apply to a first offender, whatever he has done. It applies to a person operating within a syndicate whose recorded past already shows more than one charge sheet within ten years on which cognizance was taken. The Act punishes a career, not an incident.

Feature 2: graded punishments, all severe, with minimum fines

Section 3(1)(i) prescribes death or imprisonment for life, with a minimum fine of one lakh rupees, where the organised crime has resulted in the death of any person. Section 3(1)(ii) prescribes not less than five years and up to imprisonment for life, with a minimum fine of five lakh rupees, in every other case. The same range applies by section 3(2) to conspiring, attempting, advocating, abetting or knowingly facilitating, and by section 3(3) to harbouring or concealing a member.

Feature 3: a dedicated Special Court

Sections 5 to 12 create the forum. The State Government may constitute one or more Special Courts by notification. A Special Court is presided over by a judge appointed by the State Government with the concurrence of the Chief Justice of the Bombay High Court, and section 5(4) requires that the person be, immediately before appointment, a Sessions Judge or an Additional Sessions Judge. Section 6 makes every offence under the Act triable only by the Special Court; section 7 lets it try connected offences at the same trial; section 8 requires a Public Prosecutor of at least ten years standing at the Bar; section 9 lets it take cognizance without committal, on a complaint or a police report; section 10 gives its trials precedence; and section 12 provides an appeal to the High Court.

State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5, decided the challenge to these sections. The Bombay High Court had struck them down on the ground that interception of communications belongs to Entry 31 of the Union List. The Supreme Court reversed, holding that in pith and substance they relate to the prevention and investigation of organised crime, that the grounds on which interception may be authorised are distinct from those in section 5(2) of the Indian Telegraph Act, 1885, and that any encroachment on the Union field is incidental. The same judgment upheld the Bombay High Court's excision of the words "or under any other Act" from section 21(5) as an unreasonable classification offending Article 14.

Feature 5: special rules of evidence and the admissible confession

Section 17 allows the Special Court to take into account, as having probative value, that the accused was previously bound over under section 107 or section 110 of the Code, was detained under a preventive detention law, or was previously prosecuted in the Special Court. Section 17(2) raises a presumption that unexplained property was acquired by illegal activity, and section 17(3) that a kidnapping was for ransom.

Feature 6: witness protection

Section 19 permits proceedings in camera and authorises the Special Court, on the application of a witness or the Public Prosecutor or on its own motion, to keep the identity and address of a witness secret, to sit at a place of its own choosing, to omit names and addresses from its orders and records, and to prohibit publication of the proceedings. Contravention is punishable with imprisonment up to one year and fine up to one thousand rupees.

Feature 7: forfeiture and attachment

Section 20(1) allows the Special Court, on conviction, to declare specified movable or immovable property of the accused forfeited to the State free from all encumbrances. Section 20(2) allows attachment during the trial, with forfeiture on conviction. Section 20(3) deals with the absconder: on a report from the investigating officer with the approval of the supervisory officer, the Special Court may publish a proclamation requiring appearance in not less than fifteen and not more than thirty days, notwithstanding section 82 of the Code, and may attach his property, with restoration if he appears within six months and proves he did not abscond.

Section 23 completes the scheme with three gates: no information about an offence of organised crime may be recorded without the prior approval of an officer not below Deputy Inspector General of Police; no investigation may be carried out by an officer below Deputy Superintendent of Police; and no Special Court may take cognizance without the previous sanction of an officer not below Additional Director General of Police. Prasad Shrikant Purohit v. State of Maharashtra, (2015) 7 SCC 440, held that the prior approval under section 23(1)(a) must reflect an application of mind to the material and to the organised crime alleged, and is not a formality.

Conclusion. The salient features of the Maharashtra Control of Organised Crime Act, 1999 are its three interlocking definitions in section 2(1), which confine it to a syndicate with a documented ten year record; punishments in sections 3 and 4 running to death and to life, with statutory minimum fines aimed at the economics of the syndicate; a Special Court under sections 5 to 12 presided over by a Sessions Judge appointed with the concurrence of the Chief Justice; a self contained interception code in sections 13 to 16 with a Review Committee and an annual report to the legislature; an admissible police confession under section 18; witness protection under section 19; forfeiture and attachment under section 20; and a modified procedure under sections 21 and 23.

Taken together they make the Act a machine for dismantling an enterprise rather than for punishing an act, and the judgments in Bharat Shanti Lal Shah, Zameer Ahmed, Ranjitsing Sharma and Prasad Shrikant Purohit have left the machine standing while tightening every gate on the way in.

The long title states the objectives compactly: to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as electronic commerce, which involve the use of alternatives to paper based methods of communication and storage of information; to facilitate electronic filing of documents with Government agencies; and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934.

The Act received assent on 9 June 2000 and was brought into force on 17 October 2000.

Objective 2: to facilitate electronic governance. Sections 6 to 9 form Chapter III. Section 6 permits the filing of forms and applications, the issue of licences and permits, and the receipt and payment of money, in electronic form where the appropriate Government prescribes it. Section 6A, inserted in 2008, permits the Government to authorise a service provider to deliver services and to collect a charge. Section 7A provides for audit of documents maintained electronically. Section 8 provides for publication of rules, regulations and notifications in an Electronic Gazette. Section 9 is the necessary limit: nothing in sections 6, 7 and 8 confers a right on any person to insist that a Ministry or department accept a document in electronic form.

Objective 4: to provide remedies and penalties. Chapter IX creates a civil regime: section 43, compensation for unauthorised access, downloading, contamination, damage, disruption or denial of access; section 43A, compensation against a body corporate negligent with sensitive personal data; section 44, penalty for failure to furnish information or returns; section 45, a residuary penalty. Section 46 appoints an adjudicating officer not below the rank of a Director to the Government of India or an equivalent State officer, with jurisdiction where the claim for damage does not exceed five crore rupees, larger claims going to the competent court. Section 47 lists the factors to be weighed: the amount of gain, the amount of loss, and the repetitive nature of the default.

Chapter XI creates the criminal regime, sections 65 to 78, running from tampering with source code to cyber terrorism under section 66F, which carries imprisonment for life.

Exclusions. The First Schedule, read with section 1(4), lists what the Act does not apply to: a negotiable instrument other than a cheque and certain instruments issued in favour of or endorsed by a regulated entity, a power of attorney, a trust, a will including any testamentary disposition, and a contract for the sale or conveyance of immovable property. A will still cannot be made electronically in India.

Technology neutrality. As passed, the Act recognised only the digital signature under section 3, tied to an asymmetric crypto system and hash function. The 2008 amendment inserted section 3A, which recognises an electronic signature by any technique specified in the Second Schedule, and section 3A(2) allows the Central Government to add to that Schedule by notification. The Second Schedule today carries e-authentication using Aadhaar or other e-KYC services.

Overriding effect. Section 81 gives the Act effect notwithstanding anything inconsistent in any other law. Sharat Babu Digumarti v. Govt. (NCT of Delhi), (2017) 2 SCC 18, applied it to hold that where obscenity is in electronic form the Act, being the special law, prevails over section 292 of the Indian Penal Code.

The trust objective is the weakest. The appellate machinery collapsed: the Cyber Appellate Tribunal established under section 48 was without a Chairperson from 2011, and sections 49 to 56 were omitted by the Finance Act, 2017 with effect from 26 May 2017, the jurisdiction passing to the Telecom Disputes Settlement and Appellate Tribunal. Adjudicating officers under section 46 are appointed but very little used.

The penal objective has been met unevenly. Shreya Singhal struck down section 66A in 2015 for vagueness and overbreadth, yet the text remained in the printed Act and prosecutions continued until it was formally omitted by the Jan Vishwas (Amendment of Provisions) Act, 2023 with effect from 30 November 2023. The same Act decriminalised sections 72 and 72A, converting them into monetary penalties.

The data protection question has moved out of this Act. Section 43A, the only compensation provision for a data breach, stands omitted by section 44(2) of the Digital Personal Data Protection Act, 2023, which will commence on 13 May 2027.

The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, made under section 69A(2), prescribe the committee, the reasons and the review that Shreya Singhal v. Union of India, (2015) 5 SCC 1, relied on when it upheld section 69A while striking down section 66A. The Court's reasoning was that the blocking power is confined to the grounds in Article 19(2), requires reasons in writing and is subject to those safeguards, which is a direct illustration of delegated legislation saving a parent provision.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 now prescribe the due diligence which section 79(2)(c) makes a condition of the safe harbour: a grievance officer, monthly compliance reports for significant social media intermediaries, a Chief Compliance Officer and a Resident Grievance Officer, removal within thirty six hours of a court order or Government notification, and twenty four hours for material of a sexual nature. The CERT-In directions of 28 April 2022, issued under section 70B(6), require reporting of specified cyber incidents within six hours and the retention of logs for one hundred and eighty days.

For full marks, cover: the verb is "evaluate", so a section by section description will not carry the paper. Set the provisions against a standard and measure them. The standard has three parts: the constitutional test under Article 19(2), the requirement that a criminal provision be certain enough for a citizen to know what is forbidden, and the practical question whether the provisions actually protect the people they were written for. Give the last third of the answer to reform, because an evaluation with no conclusion about what should change is only a description.

The provisions to be evaluated

Chapter XVI of the Bharatiya Nyaya Sanhita, 2023, sections 298 to 302, carries forward Chapter XV of the Indian Penal Code, sections 295 to 298, with the numbers shifted by three.

Section 196 of the Sanhita, replacing section 153A of the Indian Penal Code, must be read with them, because promoting enmity between groups on grounds of religion is prosecuted alongside section 299 in almost every real case. Section 197, replacing section 153B, punishes imputations prejudicial to national integration, and section 299 read with section 98 of the Bharatiya Nagarik Suraksha Sanhita, 2023 supplies the forfeiture power for a publication.

Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, AIR 1960 SC 633, supplies the limit that makes the first case coherent. The Court struck down a restriction because the connection between the speech and public order was remote, and laid down that the restriction must have a proximate connection with public order and not a far fetched, hypothetical or too remote one. Applied to Chapter XVI, this means a prosecution must show something more than that a group says it is offended.

Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, (2017) 7 SCC 760, shows the standard being enforced. A business magazine had carried the cricketer on its cover depicted as a deity, and a complaint under section 295A followed. The Supreme Court quashed the proceedings, holding that section 295A does not stigmatise every act of insult and that the deliberate and malicious element must appear on the allegation itself. It is the most useful modern authority because it is a case where the section was applied to stop a prosecution rather than to sustain one.

Evaluation on the four criteria

First, certainty. Section 299 is the least certain provision in the chapter, and the difficulty is structural. The actus reus is an insult to a religion or religious belief. Nothing defines insult, nothing defines religion, and the harm is a state of feeling in an indeterminate class of persons. The section is saved from vagueness only by its mental element, which is why Ramji Lal Modi insisted on it and why Dhoni quashed a prosecution that did not plead it. Sections 298, 300, 301 and 302 are far more certain, because each describes a physical act with an identifiable victim or occasion.

Second, proportionality of punishment. The sentences are low, and that is not a criticism. Two years for defiling a place of worship and three years for a deliberate and malicious insult are proportionate to offences that protect feeling and tranquillity rather than person or property. The Sanhita did not raise them, which suggests Parliament agreed.

Baragur Ramachandrappa v. State of Karnataka, (2007) 5 SCC 11, decided on 2 May 2007, shows the same tendency in the forfeiture power. The Karnataka Government forfeited every copy of the Kannada novel Dharmakaarana under section 95 of the Code of Criminal Procedure, on the ground that it offended the Veerashaiva community, and the author's application under section 96 failed in the High Court. The Supreme Court dismissed the appeal, holding that although forfeiture of a book is a serious encroachment on a citizen's right, where it is called for in the public interest that interest must have pre-eminence over the individual interest. Those powers are now sections 98 and 99 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The case is the strongest available counter to any claim that Indian courts uniformly protect the author.

It renumbered the chapter, which is a nuisance for practitioners and nothing more. It inserted "or through electronic means" into section 299, which is a real and defensible modernisation, since the great majority of complaints now arise from online content and the earlier section had to be stretched to reach it.

What it refused to do is reform. It did not define insult. It did not import the incitement requirement that Ramji Lal Modi and Ram Manohar Lohia between them require, so that the limit remains judicial and has to be argued afresh in every magistrate's court. It did not adopt the Law Commission's proposals. And it did not create any filter against a multiplicity of first information reports for the same publication in different States, which is the mechanism by which the provisions are actually abused.

Suggested reform

Four changes would meet the criticisms without abandoning the protection.

Write the incitement requirement into section 299 itself, so that the offence is committed only where the insult is intended or likely to incite violence or public disorder. That codifies Ramji Lal Modi and Ram Manohar Lohia rather than leaving them to be argued.

Conclusion. Evaluated against the constitutional standard, sections 298 to 302 of the Bharatiya Nyaya Sanhita are defensible but only in the narrow form the Supreme Court has given them: Ramji Lal Modi saves section 299 by confining it to deliberate and malicious insult, Ram Manohar Lohia requires a proximate rather than a remote connection with public order, Dhoni enforces that requirement, and Amish Devgan supplies the content, intent, context and harm framework.

Evaluated against practice, the chapter fails, because the threshold that saves it is applied at the end of a process whose cost is the punishment, and Baragur Ramachandrappa shows a court preferring the public interest to the author even after full argument. The Sanhita's only substantive contribution is the addition of electronic means to section 299, which widens the field on which the abuse occurs; it left the Law Commission's 2017 recommendations unenacted and the definition of insult exactly where Macaulay's successors left it in 1927.

On conviction, section 20(1). Where a person has been convicted of any offence punishable under the Act, the Special Court may, in addition to any punishment, by order in writing declare that any property, movable or immovable or both, belonging to the accused and specified in the order, shall stand forfeited to the State Government free from all encumbrances. Two points deserve emphasis. The order is discretionary and must specify the property. And forfeiture free from encumbrances means a mortgagee or a charge holder loses his security, which is a serious consequence for a third party who is not before the court.

During trial, section 20(2). Where a person is accused of an offence under the Act, it is open to the Special Court trying him to order that all or any of his properties be attached during the period of the trial, and where the trial ends in conviction the attached property stands forfeited to the State Government free from all encumbrances. This is a pre-conviction restraint, and it exists because a syndicate can dispose of assets long before a verdict.

Clause (b) allows the Special Court, at any time after issuing the proclamation, to order attachment of any property of the proclaimed person, and applies sections 83 to 85 of the Code, now sections 85 to 88 of the Bharatiya Nagarik Suraksha Sanhita, 2023, as if the attachment were made under that Code. Clause (c) is the restoration provision: if within six months of the attachment the person appears voluntarily or is apprehended and proves to the Court's satisfaction that he did not abscond or conceal himself to avoid apprehension and had no notice of the proclamation enabling him to attend, the property, or if sold the net proceeds and the residue, must be delivered to him after satisfying the costs of the attachment.

(b) Juvenile Justice Board under JJ Act

The Act in force is the Juvenile Justice (Care and Protection of Children) Act, 2015, which commenced on 15 January 2016.

Constitution, section 4. Notwithstanding anything in the Code of Criminal Procedure, the State Government shall constitute for every district one or more Juvenile Justice Boards to exercise the powers and discharge the functions relating to children in conflict with law. The obligation is mandatory and district wise.

Composition, section 4(2). A Board is a Bench of three: a Metropolitan Magistrate or a Judicial Magistrate of the First Class, not being the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, with at least three years experience, who is the Principal Magistrate; and two social workers selected in the prescribed manner, of whom at least one shall be a woman. Every such Bench has the powers conferred by the Code on a Metropolitan Magistrate or a Judicial Magistrate of the First Class.

Procedure. Section 10 requires a child apprehended by the police to be placed under the charge of the Special Juvenile Police Unit or the designated Child Welfare Police Officer and produced before the Board within twenty four hours, and expressly forbids a police lockup or a jail. Section 12 makes bail the rule: a person apparently a child, accused of a bailable or a non bailable offence, shall be released on bail with or without surety, and may be refused only on three grounds, that release is likely to bring him into association with a known criminal, expose him to moral, physical or psychological danger, or defeat the ends of justice; if refused, the child goes to an observation home or a place of safety, never to prison. Section 14 requires the inquiry to be completed within four months, extendable by two, and requires a preliminary assessment under section 15 to be completed within three months.

(c) Obscenity under BNS Act

Obscenity in the Bharatiya Nyaya Sanhita, 2023 sits in Chapter XV, offences affecting public health, safety, convenience, decency and morals, in sections 294 to 296.

Section 294(1) deems obscene a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, including display of any content in electronic form, if it is lascivious or appeals to the prurient interest, or if its effect, or where it comprises two or more distinct items the effect of any one of them, is, taken as a whole, such as to tend to deprave and corrupt persons likely, having regard to all relevant circumstances, to read, see or hear it. Section 294(2) punishes selling, hiring, distributing, publicly exhibiting or circulating, making, producing or possessing for those purposes, importing, exporting or conveying, profiting from such a business, advertising, and offering or attempting any of these, with up to two years and fine up to five thousand rupees on a first conviction and up to five years and fine up to ten thousand on a second.

The governing test has changed twice. Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881, upheld the conviction of a Bombay bookseller for stocking an unexpurgated Lady Chatterley's Lover and adopted the test in R. v. Hicklin, (1868) LR 3 QB 360, whether the tendency of the matter is to deprave and corrupt those whose minds are open to such influences, while cautioning that sex and obscenity are not synonymous.

Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257, quashed a prosecution over a photograph of the tennis player Boris Becker with his fiancée published as a protest against apartheid, and held expressly that Hicklin is no longer good law in India, replacing it with the contemporary community standards test applied to the work as a whole and in the light of its message. Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289, supplies the method: the judge must first place himself in the position of the author, then of the likely reader, and only then apply his own judgment, and must remember that vulgarity, which arouses disgust, is not obscenity, which tends to deprave.

Food and drink. Section 274 punishes adulteration of any article of food or drink so as to make it noxious, intending or knowing it likely that it will be sold as food or drink. Section 275 punishes selling or offering for sale any article of food or drink which has been rendered noxious or is in a state unfit for food or drink, knowing or having reason to believe it to be so.

Drugs. Section 276 punishes adulteration of a drug or medical preparation in a manner that lessens its efficacy, changes its operation or makes it noxious, with up to one year or fine up to five thousand rupees or both. Section 277 punishes the sale of an adulterated drug, and section 278 the sale of a drug as a different drug or preparation, each with up to six months or fine up to five thousand rupees or both. The fines are five times those in sections 274 to 276 of the Indian Penal Code; the imprisonment is unchanged.

Water and air. Section 279 punishes voluntarily corrupting or fouling the water of a public spring or reservoir so as to render it less fit for its ordinary use. Section 280 punishes voluntarily making the atmosphere in any place noxious to the health of persons dwelling, carrying on business or passing along a public way.

The standing criticism of this group is that the punishments were fixed in 1860 for a rural society and have never been raised. A one year maximum for adulterating medicine is the clearest example, which is why real prosecutions go under the Drugs and Cosmetics Act, 1940, and food adulteration under the Food Safety and Standards Act, 2006, rather than under this chapter.

Conclusion. The four notes divide neatly between machinery and standard. In (a) and (b) the marks lie in getting the machinery exact: section 20 of the Maharashtra Control of Organised Crime Act works differently on conviction, during trial and against an absconder, and the Juvenile Justice Board is defined by a three member Bench, a mandatory district-wise constitution, bail as the rule under section 12, and the section 15 gate for a child above sixteen. In (c) and (d) the marks lie in the standard: obscenity is now judged by contemporary community standards after Aveek Sarkar and not by Hicklin, and the public health offences are governed by section 270's rule that a common nuisance is not excused by the convenience it also brings, enforced in Ratlam Municipality against a municipality that pleaded poverty.