LLM Group 5 Criminal Law and Criminal Administration Penal Laws 2018 Question Paper with Solutions

That scheme has a gap at its centre. A public key is a string of characters. Nothing in it says whose key it is. A stranger relying on a signature must be able to obtain, from a source he can trust, an assurance that this public key belongs to that person. That assurance is the Electronic Signature Certificate, issued under section 35 by a Certifying Authority.

The Certifying Authority is therefore the pivot of the whole statute, and the question immediately arises who licenses and supervises it. That is the Controller.

Who the Controller is

Section 17(1) provides that the Central Government may, by notification in the Official Gazette, appoint a Controller of Certifying Authorities for the purposes of the Act, and may also appoint such number of Deputy Controllers, Assistant Controllers, other officers and employees as it thinks fit.

• (d) specifying the qualifications and experience which employees of a Certifying Authority should possess;
• (e) specifying the conditions subject to which the Certifying Authorities shall conduct their business;
• (f) specifying the contents of written, printed or visual materials and advertisements that may be distributed or used in respect of an electronic signature certificate and the public key;
• (g) specifying the form and content of an electronic signature certificate and the key;
• (h) specifying the form and manner in which accounts shall be maintained by the Certifying Authorities;
• (i) specifying the terms and conditions subject to which auditors may be appointed and their remuneration;
• (j) facilitating the establishment of any electronic system by a Certifying Authority, solely or jointly with others, and regulating such systems;
• (k) specifying the manner in which the Certifying Authorities shall conduct their dealings with the subscribers;
• (l) resolving any conflict of interests between the Certifying Authorities and the subscribers;

Licensing, sections 21 to 26. Section 21 provides that a person may apply to the Controller for a licence to issue electronic signature certificates, and that no licence shall be granted unless the applicant fulfils the prescribed requirements of qualification, expertise, manpower, financial resources and infrastructure. Section 22 governs the application, section 23 renewal, section 24 the grant or rejection after giving the applicant a reasonable opportunity, section 25 suspension of a licence on the grounds stated, and section 26 the publication of notice of suspension or revocation in the database and, where appropriate, in the Official Gazette.

Recognition of foreign authorities, section 19. With the previous approval of the Central Government and by notification, the Controller may recognise any foreign Certifying Authority for the purposes of the Act, and may revoke the recognition for recorded reasons if the conditions of recognition are not complied with.

Delegation, section 27. The Controller may, in writing, authorise a Deputy Controller, an Assistant Controller or any officer to exercise any of his powers.

Interception, section 69. The power to issue directions for interception, monitoring or decryption is vested in the Central or a State Government or an officer specially authorised, not in the Controller as such.

The offences that protect the office

Three offences protect the certification scheme the Controller regulates. Section 71 punishes a person who makes any misrepresentation to, or suppresses any material fact from, the Controller or a Certifying Authority for obtaining a licence or a certificate, with two years or fine up to one lakh rupees or both. Section 73 punishes publishing an electronic signature certificate knowing that the Certifying Authority listed has not issued it, or that the subscriber listed has not accepted it, or that it has been revoked or suspended, on the same scale. Section 74 punishes knowingly creating, publishing or making available such a certificate for a fraudulent or unlawful purpose, again with two years or one lakh or both.

Shreya Singhal v. Union of India, (2015) 5 SCC 1, though decided on other provisions, is instructive by analogy. The Supreme Court upheld section 69A, the blocking power, precisely because it is confined to identified grounds, requires reasons in writing and is subject to procedural safeguards in rules, while striking down section 66A for vagueness. The Controller's powers under sections 28 and 29 are of the same kind, exercisable on a stated suspicion of contravention and for a stated purpose, which is what keeps them defensible.

The Certifying Authority's duties, the subscriber's, and what a court makes of them

The Controller's functions are only half of the arrangement. The other half is the duties he enforces, and an answer that sets them out shows why the office exists.

On the subscriber, Chapter VIII. Section 40 requires a subscriber whose certificate lists a public key to generate the key pair by the applicable security procedure. Section 40A imposes the corresponding duty in respect of an electronic signature certificate. Section 41 governs acceptance of a certificate and provides that a subscriber who accepts one certifies to all who reasonably rely on it that he holds the private key and that all representations in the certificate are true. Section 42 is the operative duty: the subscriber shall exercise reasonable care to retain control of the private key and take all steps to prevent its disclosure, and if the key has been compromised he shall communicate the fact without any delay to the Certifying Authority, remaining liable until he does so.

What a court makes of the chain. The presumptions in the law of evidence attach only where the chain has been observed. Section 87 of the Bharatiya Sakshya Adhiniyam, 2023, replacing section 85C of the Indian Evidence Act, 1872, presumes that the information listed in an Electronic Signature Certificate is correct, except for information marked as unverified subscriber information, where the subscriber accepted the certificate.

Conclusion. The Controller of Certifying Authorities is an officer appointed by the Central Government under section 17, working under its general control, who sits at the root of the Act's trust infrastructure. His functions under section 18 are supervisory and regulatory: supervising Certifying Authorities, certifying their public keys, laying down standards, qualifications, conditions, forms, accounts and duties, resolving conflicts with subscribers, and maintaining a publicly accessible database of disclosure records. Beyond section 18 he licenses, renews, suspends and revokes under sections 21 to 26, recognises foreign authorities under section 19, investigates contraventions under section 28 with income tax powers, accesses computer systems under section 29 and issues binding directions under section 68, and sections 71, 73 and 74 punish those who deceive him or misuse the certificates his licensees issue.

Section 2(1)(d) defines continuing unlawful activity as an activity prohibited by law which is a cognizable offence punishable with imprisonment of three years or more, undertaken singly or jointly as a member of or on behalf of an organised crime syndicate, in respect of which more than one charge sheet has been filed before a competent court within the preceding period of ten years, and that court has taken cognizance.

Section 2(1)(f) defines an organised crime syndicate as a group of two or more persons who, acting singly or collectively as a syndicate or gang, indulge in activities of organised crime.

The consequence of reading the three together is that MCOCA cannot be applied to a first offender, however grave the act, and that is the answer an examiner is looking for in one line.

Is interception freely allowed? No

Interception under MCOCA is a controlled statutory power, not a general licence, and four features prove it.

It is confined to the purpose of the Act. Section 14(1) permits an application only where the interception may provide or has provided evidence of any offence involving an organised crime.

Section 14(2) requires the application itself to state the identity of the applicant and of the head of department authorising it, the details of the offence, and a particular description of the nature and location of the facilities to be intercepted.

It is reviewed, and unauthorised interception is itself an offence. Section 15 constitutes a Review Committee which must consider every order within ten days. Section 16 makes it an offence for a police officer to intercept, endeavour to intercept or procure interception except as specifically provided in section 14. Section 27 requires an annual report of interceptions to be laid before the State Legislature.

Emergency interception, section 14(10) to 14(12)

Section 14(10) opens with the words "Notwithstanding anything contained in any other provision of this section", and it is the only route by which interception may begin before a Competent Authority has authorised it.

The condition attached. The authorisation is valid only if an application for an order approving the interception is made in accordance with sub-sections (1) and (2) within forty eight hours after the interception has occurred, or begins to occur. The emergency power therefore does not displace the Competent Authority; it postpones him by a maximum of two days.

What happens if approval is not obtained, section 14(11). In the absence of an order approving the interception, the interception shall immediately terminate when the communication sought is obtained, or when the application for the order is rejected, whichever is earlier. And where an application under section 14(4) is rejected, or an application for approval under section 14(10) is rejected, or the interception is terminated without an order having been issued, the contents of any communication intercepted shall be treated as having been obtained in violation of this section. The consequence is evidential: material so obtained cannot be used.

The constitutional challenge to the interception code

State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5, decided on 1 September 2008, is the leading case and it is the answer to any suggestion that these powers are unconstitutional. The accused contended that interception of communications falls within Entry 31 of the Union List, posts and telegraphs and other like forms of communication, so that a State legislature could not enact sections 13 to 16, and that the sections were repugnant to section 5(2) of the Indian Telegraph Act, 1885. The Bombay High Court accepted the argument and struck the sections down.

The Supreme Court reversed. It held that in pith and substance sections 13 to 16 relate to the prevention and investigation of organised crime, a subject within Entries 1 and 2 of the State List, public order and police; that the grounds on which interception may be authorised under MCOCA are distinct from those in section 5(2) of the Telegraph Act, which is concerned with public emergency and public safety, so that no repugnancy arises; and that any encroachment on the Union field is merely incidental. In the same judgment the Court affirmed the excision of the words "or under any other Act" from section 21(5) as an unreasonable classification violating Article 14.

Conclusion. Organised crime under MCOCA is continuing unlawful activity by or for a syndicate of two or more persons, carried on by violence, threat, intimidation, coercion or other unlawful means, for pecuniary or economic advantage or to promote insurgency, where more than one charge sheet has already been filed within ten years and cognizance taken. Interception is emphatically not freely allowed: it requires a Superintendent of Police to apply, a Secretary to Government to authorise on recorded reasons and on four stated grounds including the exhaustion of normal investigative methods, a three member Review Committee to confirm within ten days on pain of the material being inadmissible and destroyed, and an annual report to the legislature.

Emergency interception is permitted by section 14(10) only where an officer of at least Additional Director General of Police rank reasonably determines that there is immediate danger of death or serious injury, or conspiratorial activity threatening the State or characteristic of organised crime, and that the order cannot be obtained with due diligence in time; and it lapses unless an application for approval is made within forty eight hours, failing which everything intercepted is treated as obtained in violation of the section.

What needs reform is its content and its penal policy. The Code was written for a colonial possession by a Government whose first concern was its own security; it was amended for a century and a half in reaction to particular events rather than by principle; and it prescribes punishments without any law of sentencing.

Defect one: offences protecting the ruler rather than the State

The provision: section 124A, sedition. Inserted in 1870, it punished exciting hatred, contempt or disaffection towards the Government established by law, with life imprisonment, or up to three years, or fine.

The evidence. Two High Courts held it unconstitutional: the Punjab High Court in Tara Singh Gopi Chand v. The State on 28 November 1950, and the Allahabad High Court in Ram Nandan v. State, AIR 1959 All 101, on 16 May 1958, the latter holding that a mere possibility of public disorder cannot justify restricting speech. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, upheld it only by reading in a requirement of an intention or tendency to create disorder or incite violence, which the text never carried. On 11 May 2022, in S.G. Vombatkere v. Union of India, the Supreme Court kept the whole section in abeyance, an order without real precedent in Indian constitutional practice.

The suggestion. A codified criminal law should be revised by the legislature that made it. The remedy is a standing mechanism, such as a permanent criminal law revision commission, whose recommendations Parliament is required to consider within a fixed period, so that provisions do not survive for 150 years until a constitutional bench removes them.

Defect three: growth by reaction rather than by principle

The provisions: sections 354A to 354D, 326A and 326B, 376AB and 376DB. Each was inserted after a particular outrage, sexual harassment, stalking, voyeurism, disrobing and acid attacks by the Criminal Law (Amendment) Act, 2013 following the Justice J.S. Verma Committee, and the aggravated rape provisions by the Criminal Law (Amendment) Act, 2018.

The evidence. Every one of those amendments was sound, and every one was also proof that the Code contained no general principle from which the offence could be derived. A code that must be amended after each event is not performing the function of a code.

The suggestion. Enact a chapter of sentencing principles stating the purposes of sentencing, listing aggravating and mitigating factors, requiring reasons to be recorded, and establishing a sentencing council to issue guidelines. Add community service and compensation to the victim to section 53 as punishments in their own right.

Defect five: no corporate criminal liability and no general mens rea rule

The provisions: sections 11, 24, 25 and the absence of any attribution rule. The Code was drafted before the modern company, and although "person" in section 11 includes a company, nothing states when the acts of a natural person are attributed to it.

The evidence. The courts had to construct the rule. In Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530, a Constitution Bench held that a company may be prosecuted and punished for an offence carrying a mandatory sentence of both imprisonment and fine, the court imposing the fine alone. The Code also uses at least six mental element terms, dishonestly, fraudulently, voluntarily, knowingly, intentionally and maliciously, defined in different places or not at all.

The suggestion. Repeal section 309 in the Code itself rather than by a side wind in a mental health statute, and delete the marital rape exception.

What the Bharatiya Nyaya Sanhita, 2023 has done

The Sanhita came into force on 1 July 2024 and section 358 repeals the Indian Penal Code. It answers several of the suggestions above:

Section 4(f) introduces community service as a punishment for the first time in Indian penal law. Section 111 creates a general offence of organised crime and section 112 of petty organised crime, closing the gap that had forced States to legislate. Section 113 brings the terrorist act into the ordinary penal law. Sections 377 and 497 are simply not reproduced. Fines fixed in 1860 have been raised across the Code. Chapter V gathers the offences against women and children.

Conclusion. The statement is justified, and the suggestions attach to identifiable provisions: replace section 124A with an offence requiring incitement to violence and protecting the State rather than the Government; provide a standing revision mechanism so that provisions like sections 377 and 497 are repealed rather than struck down; restate the offences against the person around consent and bodily integrity; enact a sentencing chapter and add community service and victim compensation to section 53; insert general provisions on corporate attribution and on mens rea; and repeal section 309 and the marital rape exception. The Bharatiya Nyaya Sanhita, 2023 has adopted community service, organised crime, terrorism and the removal of sections 377 and 497, and has left the sentencing, corporate liability, mens rea and marital rape suggestions untouched while widening the successor to sedition.

In camera proceedings, section 19(1). Notwithstanding anything in the Code of Criminal Procedure, the proceedings under the Act may be held in camera if the Special Court so desires. The ordinary rule, in section 327 of the Code and now section 366 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is that the place in which a criminal court sits is an open court; section 19(1) displaces it on the court's own view of the matter.

Anonymity, section 19(2). A Special Court may, on an application made by a witness in any proceeding before it, or by the Public Prosecutor in relation to such a witness, or on its own motion, take such measures as it deems fit for keeping the identity and address of any witness secret. The power to act on its own motion matters, because a frightened witness will usually not apply.

The measures, section 19(3). Without prejudice to that generality, they may include: (a) holding the proceedings at a place to be decided by the Special Court, which allows it to sit in a prison or other secure location; (b) avoiding the mention of the names and addresses of witnesses in its orders, judgments or any records of the case accessible to the public; (c) issuing directions for securing that identities and addresses are not disclosed; and (d) ordering, where it is in the public interest, that all or any of the proceedings shall not be published in any manner.

The general law has since caught up. In Mahender Chawla v. Union of India, (2019) 14 SCC 615, the Supreme Court approved the Witness Protection Scheme, 2018 and directed that it be treated as law under Articles 141 and 142 until Parliament legislates, providing for categories of threat, a Witness Protection Cell in every district and identity protection measures. Section 19 of MCOCA is therefore the earliest Indian statutory model of what has become a general scheme.

(b) Drug adulteration

The three offences. The Indian Penal Code dealt with adulteration of drugs in sections 274 to 276, now sections 276 to 278 of the Bharatiya Nyaya Sanhita, 2023, in the chapter on offences affecting public health.

Section 274, now 276, adulteration of drugs. Whoever adulterates any drug or medical preparation in such a manner as to lessen its efficacy, change its operation or make it noxious, intending that it shall be sold or used for a medicinal purpose as if it had not undergone the adulteration, or knowing it to be likely that it will be so sold or used, is punishable with imprisonment up to one year, or fine, or both. The Sanhita raised the fine from one thousand to five thousand rupees and left the imprisonment where it was.

Why the sections are almost never charged. A one year maximum for adulterating medicine is derisory against the harm. Real prosecutions go under section 27 of the Drugs and Cosmetics Act, 1940, which reaches imprisonment for life where an adulterated or spurious drug causes death or grievous hurt, and section 17 and 17B of that Act define misbranded, adulterated and spurious drugs far more precisely than the Penal Code ever did.

Municipal Corporation of Delhi v. Kacheroo Mal, (1976) 1 SCC 412, decided on the parallel food adulteration provisions, is the case on proof. The Supreme Court treated the state of the article and the fact of the sale as the gravamen of a public health offence and declined to import a general requirement of knowledge, while insisting that the statutory procedure for sampling and analysis be strictly followed, which is where such prosecutions usually fail.

The punishment. Section 290, now section 292, punishes a public nuisance in any case not otherwise punishable with a fine which may extend to one thousand rupees, raised by the Sanhita from two hundred. Section 291, now section 293, punishes a person who repeats or continues a public nuisance after being enjoined by a public servant having lawful authority not to repeat or continue it, with simple imprisonment up to six months, or fine up to five thousand rupees, or both.

The specific nuisances. Sections 269 to 289 of the Penal Code, now sections 271 to 291 of the Sanhita, are particular public nuisances: spreading infection, disobeying a quarantine rule, adulterating food, drink or drugs, fouling water, making the atmosphere noxious, rash driving, obstruction in a public way, and negligent conduct with respect to poison, fire, explosives, machinery, buildings and animals.

The effective remedy is preventive. Section 133 of the Code of Criminal Procedure, now section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023, empowers a Magistrate to make a conditional order for the removal of a nuisance, and sections 153 to 162 carry it through to an absolute order, an injunction pending inquiry and a prohibition on repetition.

Section 2(b) of the Juvenile Justice (Care and Protection of Children) Act, 2000 defines begging as (i) soliciting or receiving alms in a public place, or entering into any private premises for the purpose of soliciting or receiving alms, whether under any pretence; and (ii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal.

The second limb is aimed not at the child who asks but at the adult who displays an injury, or a child's injury, to extract money, which is the mechanism of organised begging.

The consequence for the child. He is a victim, not an offender. The 2000 Act as originally enacted did not mention begging in the definition of a child in need of care and protection; the Juvenile Justice (Amendment) Act, 2006 inserted clause (ia) into section 2(d), bringing within that definition a child "who is found begging, or who is either a street child or a working child". Such a child goes before the Child Welfare Committee under section 29 and never before the Juvenile Justice Board.

The wider law has moved the same way. In Harsh Mander v. Union of India, decided by the Delhi High Court on 8 August 2018, a Bench of Gita Mittal, Acting Chief Justice, and C. Hari Shankar J. struck down sections 4 to 10 and 12 to 29 of the Bombay Prevention of Begging Act, 1959 as extended to Delhi, holding that criminalising begging violates Articles 14 and 21 and that a person driven to beg by destitution cannot be punished for the State's failure to provide the necessities of life. The Juvenile Justice Act had taken that position for the child three decades earlier.

For full marks, cover: two limbs of roughly equal weight. Take the objectives from the preamble and long title, five of them, and attach each to the chapter that delivers it. Then take the offences grouped by what is attacked, not in numerical order, because a numbered list is what every weak answer produces. Close on the two provisions that have left the statute book, which is what shows currency.

The objectives

The Act received assent on 9 June 2000 and was brought into force on 17 October 2000. Its preamble recites that the General Assembly of the United Nations, by resolution A/RES/51/162 of 30 January 1997, adopted the Model Law on Electronic Commerce prepared by the United Nations Commission on International Trade Law and recommended that all States give favourable consideration to it. Its long title states the purposes.

Objective three: an infrastructure of trust. Chapter VI, sections 17 to 34, creates the Controller of Certifying Authorities, whose functions in section 18 include supervising Certifying Authorities, certifying their public keys, laying down standards and maintaining a publicly accessible database of disclosure records. Chapter VII governs certificates and Chapter VIII the duties of subscribers, including the duty in section 42 to keep the private key confidential.

Objective four: civil and criminal remedies. Chapter IX makes unauthorised interference a civil wrong sounding in compensation, with an adjudicating officer under section 46 whose jurisdiction runs to a claim of five crore rupees; Chapter XI creates the offences.

Objective five: amendment of four related statutes. Sections 91 to 94 amended the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934, through four Schedules. Those sections and the Third and Fourth Schedules were themselves omitted as spent by the Information Technology (Amendment) Act, 2008 with effect from 27 October 2009; the amendments they made survive in the amended Acts, notably sections 65A and 65B of the Evidence Act, now sections 62 and 63 of the Bharatiya Sakshya Adhiniyam, 2023, and the substituted section 2(8) and new section 2A of the Bankers' Books Evidence Act.

Against the person. Section 66C, identity theft, fraudulent or dishonest use of the electronic signature, password or any other unique identification feature of another person, three years and fine up to one lakh. Section 66D, cheating by personation using a computer resource, three years and fine up to one lakh. Section 66E, violation of privacy, intentionally capturing, publishing or transmitting the image of a private area of a person without consent in circumstances violating privacy, three years or fine up to two lakh or both.

Against decency, and against children. Section 67, publishing or transmitting obscene material in electronic form, three years and five lakh on a first conviction, five years and ten lakh on a second. Section 67A, material containing a sexually explicit act, five years and ten lakh, seven years on a second conviction. Section 67B, material depicting children in a sexually explicit act, on the same scale, and uniquely reaching a person who collects, seeks, browses or downloads. A proviso exempts from all three any work in electronic form whose publication is proved to be justified as being for the public good in the interest of science, literature, art or learning, or which is kept or used bona fide for religious purposes. Section 67C obliges intermediaries to preserve and retain information, contravention now attracting a penalty up to twenty five lakh rupees.

Procedure. Section 77B makes every offence punishable with three years imprisonment bailable; section 78 requires investigation by an officer not below Inspector; section 77A permits compounding except where the punishment is life or exceeds three years, which places sections 67A and 67B outside compounding; section 75 applies the Act to conduct outside India involving a computer located in India; sections 84B and 84C punish abetment and attempt; section 76 provides for confiscation.

What is no longer there. Section 66A, which punished sending offensive messages, was struck down in Shreya Singhal v. Union of India, (2015) 5 SCC 1, as violating Article 19(1)(a) because its terms were open ended and did not fall within the eight subjects in Article 19(2), and it was omitted from the statute book by the Jan Vishwas (Amendment of Provisions) Act, 2023 with effect from 30 November 2023. The same Act decriminalised sections 72 and 72A, breach of confidentiality and disclosure in breach of a lawful contract, replacing imprisonment with penalties of five lakh and twenty five lakh rupees and changing the marginal heading of section 72A from Punishment to Penalty.

What is being moved. Section 44(2) of the Digital Personal Data Protection Act, 2023 omits section 43A of the Information Technology Act, amends section 81 so that the Information Technology Act does not override the new Act, and omits clause (ob) of section 87(2), the rule making power under which the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 were made. Section 44(1) amends section 14 of the Telecom Regulatory Authority of India Act, 1997 so that the appellate tribunal there constituted is recorded as the appellate tribunal for the Information Technology Act, the Airports Economic Regulatory Authority of India Act, 2008 and the new Act.

When. The Digital Personal Data Protection Rules, 2025 were notified on 13 November 2025, together with a staggered commencement of the parent Act. Section 44(2), and therefore the omission of section 43A, commences eighteen months from that notification, on 13 May 2027. Until then section 43A remains in force, and an answer which states that it has already been repealed is wrong today.

Conclusion. The Act was passed to give electronic records and signatures the legal effect of paper, to enable electronic filing with Government, to build a certifying authority infrastructure capable of supporting that effect, to supply civil and criminal remedies for misuse, and to amend four related statutes; Chapters III, VI to VIII, IX and XI deliver those objectives in order. The offences divide by what is attacked: data and systems in sections 65, 66, 66B and 70; the person in sections 66C, 66D and 66E; decency and children in sections 67 to 67C; the State in section 66F, which reaches imprisonment for life; and the certification scheme in sections 71, 73 and 74. Since this paper was set, section 66A has been omitted and sections 72 and 72A have been decriminalised, which is the clearest evidence that the penal side of the Act is still being corrected.

Element one: the material. Section 292(1), now section 294(1), applies to a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object. The Sanhita adds "including display of any content in electronic form". The words "any other object" are what allow the section to reach a photograph, a film, a sculpture or a recording.

Element two: the standard. The material is deemed obscene if it is lascivious or appeals to the prurient interest, or if its effect is such as to tend to deprave and corrupt persons likely, having regard to all relevant circumstances, to read, see or hear it. The three limbs are alternatives, and the third is the descendant of the Hicklin formula.

Element three: the material is judged as a whole. The effect is to be assessed "taken as a whole", and where the material comprises two or more distinct items, the effect of any one of them may be considered. This forbids the prosecution from isolating a passage and tendering it out of context.

Element four: the person considered. The test looks to persons who are likely, having regard to all relevant circumstances, to read, see or hear the material. It is therefore not the most susceptible imaginable reader but the actual likely audience.

The related offences. Section 293, now section 295, punishes the same conduct towards a child with three years and fine up to two thousand rupees on a first conviction and seven years and five thousand on a second. Section 294, now section 296, punishes an obscene act in a public place, or an obscene song, ballad or words in or near a public place, but only where done to the annoyance of others, with three months or fine up to one thousand or both.

The standard has changed

Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257, decided on 3 February 2014, is the decisive modern authority. A Calcutta weekly reproduced a photograph, first published in a German magazine, of the tennis player Boris Becker with his fiancée, both partly nude, published with an interview in which the couple protested against apartheid. The Supreme Court quashed the prosecution and held expressly that the Hicklin test is no longer good law in India, because it isolates a passage and measures it against the most susceptible reader. It adopted the contemporary community standards test: whether a reasonable person, applying present day community standards and taking the work as a whole with regard to its message and context, would find that it appeals to the prurient interest.

(i) the publication of which is proved to be justified as being for the public good on the ground that such book or other work is in the interest of science, literature, art or learning or other objects of general concern; or

(ii) which is kept or used bona fide for religious purposes.

Why it exists. Without it the section would criminalise the medical textbook, the anthropological study, the serious novel and the religious text. Article 19(1)(a) and the freedom to practise and propagate religion under Article 25 both require the carve out.

Who bears the burden. Limb (a)(i) uses the words "is proved to be justified". The burden is therefore on the person claiming the exemption, which is why an accused publisher must lead evidence of literary, artistic or scientific merit; it is not enough to assert it. Limb (a)(ii) requires the religious use to be bona fide, which is again a matter the claimant must establish.

The limits. The exemption protects a work, not conduct. It cannot protect a recording of an actual act, which is why the corresponding proviso to section 67B of the Information Technology Act cannot save a person who records abuse of a child.

A further exemption outside the Code. The proviso to section 67B of the Information Technology Act, 2000 applies exemptions in the same terms as limb (a) to sections 67, 67A and 67B, so that electronic material of genuine scientific, literary, artistic or religious value is protected in the same way. Sharat Babu Digumarti v. Govt. (NCT of Delhi), (2017) 2 SCC 18, held that where the material is in electronic form the Information Technology Act, being the special law and carrying an overriding effect under section 81, displaces the Penal Code altogether.

Assessment

The definition is sound and the exemptions are well drawn; the difficulty is that both were written in 1860 and the standard has had to be replaced judicially. The Sanhita brought electronic content inside section 294(1) and raised the fines, but it did not codify Aveek Sarkar, so a court applying section 294 today must still be told that Hicklin is dead. Section 296 remains the loosest provision in the group, punishing an "obscene act" that no statute defines, and it is the section most casually invoked against speech and performance.

For full marks, cover: three questions, and the third contains a trap. Indian law has no offence of treason. Say that clearly, explain what English law means by it and what Indian law puts in its place, and then answer the real question, which is whether the attack on Parliament was waging war under section 121. The marks are in Navjot Sandhu and in the distinction between waging war, rioting and terrorism.

What waging war means

Section 121 of the Indian Penal Code, now section 147 of the Bharatiya Nyaya Sanhita, 2023, provides that whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life, and shall also be liable to fine. The illustration attached to the section says that a person who joins an insurrection against the Government of India commits the offence.

The expression is not defined. Its meaning has been supplied entirely by decision, and three propositions carry the law.

The associated offences. Section 121A, now section 148, punishes conspiracy, within or beyond India, to commit an offence under section 121, or to overawe the Central or a State Government by criminal force or the show of criminal force, with life or up to ten years and fine, and an Explanation provides that no act or illegal omission need follow. Section 122, now section 149, punishes collecting men, arms or ammunition, or otherwise preparing to wage war, with life or up to ten years and fine. Section 123, now section 150, punishes concealing with intent to facilitate a design to wage war, with up to ten years and fine. Section 124, now section 151, punishes assaulting the President or a Governor with intent to compel or restrain the exercise of a lawful power.

Is it a serious offence?

It is the most serious offence in the chapter and among the most serious in the Code, and four features prove it.

The sentence. Section 121 carries death or imprisonment for life, which only a handful of offences in the Code do, and it carries no lesser alternative at all.

What treason means in English law. High treason is a distinct offence under the Treason Act 1351 and later statutes, historically covering compassing the death of the sovereign, levying war against the sovereign in his realm, and adhering to the sovereign's enemies. It is an offence against the person of the sovereign and against allegiance, and it carried consequences, such as corruption of blood and forfeiture, that no Indian statute has ever had.

What Indian law put in its place. Macaulay's Code deliberately did not adopt treason. It created instead an offence against the Government of India as an institution, in section 121, with the associated offences in sections 121A to 124A. There is no allegiance requirement: a foreign national who wages war against the Government of India commits the offence, which is why Kasab could be convicted of it. The Sanhita has kept that scheme and, in section 152, has moved the protected interest further, to the sovereignty, unity and integrity of India.

Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1, confirmed and extended the reasoning after the Bombay attacks of 26 November 2008. The Supreme Court upheld the conviction under section 121 and held that the object of the attack was not simply mass murder but to destabilise the Government of India and to strike at its authority, and that ten men who came from Karachi were waging war though they constituted no army. The Court also dealt with the fair trial objections, holding that the accused had been offered counsel and had refused, and that his rights under Article 22 had not been infringed.

Waging war, terrorism and rioting distinguished

The categories overlap in fact and are charged together, which is what happened in both Navjot Sandhu and Kasab. What distinguishes waging war is that its object is the Government itself; what distinguishes a terrorist act is the striking of terror in the population as a means; and what distinguishes rioting is that the object is private, however violent the means.

How the offence is tried, and where it fails

The procedure is worth a section because an offence punishable with death is tried under safeguards that the answer should name.

Sanction. Section 45 of the Unlawful Activities (Prevention) Act requires previous sanction before cognizance of an offence under Chapters IV and VI, and section 45(2) requires that sanction to be given only after an independent review of the evidence by an authority appointed for the purpose. There is no corresponding requirement for section 121 of the Penal Code itself, which is a gap: the gravest offence in the chapter may be charged without any prior scrutiny outside the police station.

Where prosecutions fail. They fail on proof of the object, because the offence turns on the purpose of the assembly and purpose has to be inferred from conduct, and they fail on evidence, because the material is very often electronic. State (NCT of Delhi) v. Navjot Sandhu is the illustration on both counts: the Court convicted one accused and acquitted two others on the same body of material, and its observations on section 65B of the Indian Evidence Act, 1872 were later overruled in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, which held the certificate to be mandatory. A prosecution for waging war brought today has to satisfy section 63 of the Bharatiya Sakshya Adhiniyam, 2023 for every electronic record it relies on.

Three explanations qualified the offence: disaffection includes disloyalty and all feelings of enmity; comments disapproving of the measures of Government with a view to their alteration by lawful means are not an offence; and the same saving applies to comments on administrative or other action.

The offence was cognizable, non bailable and non compoundable, and triable by a Court of Session.

Argument one: the range is incoherent

A single provision that runs from a fine to imprisonment for life, with no minimum, no gradation and no statutory criterion for choosing between the tiers, is not a sentencing provision at all. It transfers the entire decision to discretion: the prosecutor's choice of what to allege and the judge's view of how grave it was.

No other speech offence in the Penal Code carried life imprisonment. Section 153A, promoting enmity between groups, carried three years, or five years in a place of worship. Section 505, statements conducing to public mischief, carried three years, or five in the aggravated form. Defamation under section 500 carried two years. Sedition alone reached life, and nothing in the section explained why.

Argument three: the text never matched the law

Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, upheld section 124A but only by reading it down. A Constitution Bench held that the section applies only to acts involving an intention or tendency to create disorder or disturbance of law and order, or incitement to violence, and that strong words of disapprobation, however disloyal in sentiment, are not sedition without that tendency. The Court preferred the construction of the Federal Court in Niharendu Dutt Majumdar v. King Emperor, AIR 1942 FC 22, and disapproved the Privy Council in King Emperor v. Sadashiv Narayan Bhalerao, AIR 1947 PC 82.

Parliament never enacted that reading. The words on the statute book in 2020 were the words Strachey J. construed in Queen Empress v. Bal Gangadhar Tilak, ILR (1897) 22 Bom 112, when he told a jury that disaffection means simply the absence of affection and that no disorder need follow. A police officer at a station registered cases on the text, not on the judgment.

The strongest single piece of evidence is what the Supreme Court had to do. On 11 May 2022, in S.G. Vombatkere v. Union of India, a three judge Bench directed that all pending trials, appeals and proceedings under section 124A be kept in abeyance and that no fresh first information report be registered under it. A court does not suspend an entire penal section of a statute unless the ordinary machinery has failed. In September 2023 the challenge was referred to a larger Bench.

Argument five: the comparative position

The offence India retained until 2024 came from England, and England abolished it. Section 73 of the Coroners and Justice Act 2009 abolished the common law offences of sedition and seditious libel, together with obscene libel and defamatory libel, with effect from 12 January 2010. The abolition was moved on the ground that the offences were archaic, that they had been used to suppress political dissent, and that their continued existence on the English statute book was cited by other States to justify their own repressive laws.

The answer to it is twofold. An enforcement failure sustained for sixty years and corrected only by an unprecedented judicial suspension of an entire section is not an enforcement failure; it is a drafting failure, and the remedy for a drafting failure is legislation. And the argument concedes the point about the punishment, because if the offence is confined to incitement to violence, a range beginning at a fine is as indefensible as one ending at life.

The position now

The Indian Penal Code has been repealed by section 358 of the Bharatiya Nyaya Sanhita, 2023, in force from 1 July 2024. Section 152 replaces sedition with an offence of an act endangering the sovereignty, unity and integrity of India, committed purposely or knowingly, by words, signs, visible representation, electronic communication or use of financial means, by exciting secession, armed rebellion or subversive activities or encouraging feelings of separatist activities. The punishment is imprisonment for life, or imprisonment which may extend to seven years, and fine.

Conclusion. The punishments prescribed for sedition under section 124A were not justified. A range running from a fine to imprisonment for life, with no minimum and no criterion for choosing between the tiers, is not a sentencing provision; the cognizable and non bailable classification made the pre-trial process the real penalty in almost every case; the words on the statute book never carried the incitement requirement Kedar Nath Singh imported in 1962, so the section was applied for sixty years on a construction the Supreme Court had rejected; the outcomes were a mass of registrations and almost no convictions; and England, whose offence it was, abolished it in 2009. The Supreme Court's order of 11 May 2022 keeping the entire section in abeyance is the strongest possible confirmation of that conclusion, and section 152 of the Sanhita, which raises the lesser maximum to seven years and leaves the range ungraded, has not answered it.

One, an assembly. There must be a gathering, not an individual at prayer. A single worshipper disturbed is protected by section 298 of the Penal Code, now section 302 of the Sanhita, which punishes uttering a word or making a sound or gesture with the deliberate intention of wounding the religious feelings of any person.

Two, lawfully engaged. The assembly must be lawful. An assembly which is itself unlawful under section 141 of the Penal Code, now section 189 of the Sanhita, or which is held in defiance of a prohibitory order, is not protected.

Three, in the performance of religious worship or religious ceremonies. The section protects the act of worship or ceremony, not the building and not the congregation at other times. A ceremony includes a procession, a funeral rite and a festival observance.

Four, voluntarily causing disturbance. The disturbance must be voluntary within section 39 of the Penal Code, now section 3(2) of the Sanhita, that is caused by means which the accused knew or had reason to believe were likely to cause it. Noise, obstruction, forced entry, interruption of the officiant and the playing of music intended to drown the service have all been treated as disturbance. Mere presence, or an accidental interruption, is not.

The constitutional frame. Ramji Lal Modi v. State of U.P., AIR 1957 SC 620, upheld section 295A against Article 19(1)(a), holding that the section does not penalise every insult to religion but only the aggravated form committed with a deliberate and malicious intention, and that so confined it is a reasonable restriction in the interests of public order under Article 19(2). Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, AIR 1960 SC 633, supplied the limit, holding that the connection between the restriction and public order must be proximate and not remote or fanciful. Section 300 sits comfortably within both, because the disturbance of a worship service is itself a public order event and requires no chain of inference at all, which is why it has never been the subject of a serious constitutional challenge, unlike section 299.

Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, (2017) 7 SCC 760, shows the neighbouring section being controlled: the Supreme Court quashed a section 295A prosecution over a magazine cover depicting a cricketer as a deity, holding that the deliberate and malicious element must appear on the face of the allegation.

Section 278, formerly 276, punishes knowingly selling or issuing any drug as a different drug or preparation, on the same scale.

The scheme separates the adulterator, the knowing seller and the substituter, and each requires intention or knowledge.

Why the real law is elsewhere. A maximum of one year for adulterating medicine is not a sanction proportionate to a harm that can be fatal and can be inflicted at scale, and the Sanhita raised the fine fivefold without touching the imprisonment. The effective statute is the Drugs and Cosmetics Act, 1940.

Section 27 supplies the punishment, and it is on a different scale altogether. Where a drug that is adulterated under section 17A or spurious under section 17B is likely to cause death or grievous hurt, section 27(a) prescribes imprisonment not less than ten years, which may extend to imprisonment for life, and a fine not less than ten lakh rupees or three times the value of the drugs confiscated, whichever is more. Where a drug is spurious under section 17B but does not fall within clause (a), section 27(c) prescribes imprisonment not less than seven years, which may extend to imprisonment for life, and a fine not less than three lakh rupees or three times the value confiscated, whichever is more. Section 18 prohibits manufacture and sale in contravention of the Act and of the licensing requirement, section 32 governs cognizance, and section 33 the rule making power.

Related statutes. Where the substance is a narcotic drug or psychotropic substance, the Narcotic Drugs and Psychotropic Substances Act, 1985 applies. Where the article is food rather than medicine, the Food Safety and Standards Act, 2006 replaced the Prevention of Food Adulteration Act, 1954.

Both are offences against a collective interest. Neither has a victim in the ordinary sense. The assembly disturbed under section 300 is a congregation, and the class of persons whose religious feelings are protected is indeterminate. The person harmed by an adulterated drug under section 276 may never be identified, and the offence is complete when the drug is adulterated with the intention that it be sold, whether or not anyone takes it. That is why both sit in the group of offences which no individual can vindicate for himself and which the State must prosecute.

Both are drafted around an intention that is hard to prove. Section 300 requires the disturbance to be caused voluntarily, which imports section 39 of the Penal Code, now section 3(2) of the Sanhita: an effect is caused voluntarily where it is caused by means which the actor knew or had reason to believe were likely to cause it. Section 276 requires the adulteration to be done intending that the drug be sold as unadulterated, or knowing it to be likely. In both, the prosecution must prove a state of mind from surrounding circumstances, and in both a defence of accident or of ignorance is genuinely available.

Conclusion. The offence of disturbing a religious assembly under section 300 of the Sanhita requires an assembly lawfully engaged in worship or a religious ceremony and a voluntary disturbance of it, carries one year or fine or both, and is the most precisely drafted provision in a chapter which Ramji Lal Modi and Ram Manohar Lohia between them confined to aggravated conduct with a proximate connection to public order. Drug adulteration is three graded offences in sections 276 to 278 of the Sanhita, all requiring knowledge or intention and all carrying penalties fixed in 1860; the operative law is sections 17A, 17B and 27 of the Drugs and Cosmetics Act, 1940, under which an adulterated or spurious drug likely to cause death attracts not less than ten years and up to imprisonment for life.

Section 169, formerly 171A, supplies the two definitions that make the chapter work. A candidate is a person who has been nominated as a candidate at any election. An electoral right is the right of a person to stand, or not to stand as, or to withdraw from being, a candidate, or to vote or refrain from voting at an election. Because the definition includes not standing, withdrawing and refraining from voting, the chapter reaches money paid to a rival to withdraw and money paid to a voter to stay at home, which are the two most valuable transactions at a close election.

Harm one: the voter is bought

The nature of the crime. The elector's decision is replaced by a transaction. What is bought may be a vote cast, a vote withheld, a nomination made or a nomination withdrawn.

How the Code deals with it. Section 170, formerly 171B, defines bribery: giving a gratification with the object of inducing any person to exercise an electoral right or rewarding him for having exercised it, and accepting a gratification as such a reward or for inducing another. Both sides of the transaction commit the offence.

The limit. A declaration of public policy or a promise of public action is expressly not bribery. S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659, applied that limit to the free distribution of televisions, mixers and grinders promised in an election manifesto. The Supreme Court held that a manifesto promise is not a corrupt practice by the candidate, because the manifesto is issued by the political party and not by the candidate, and because it falls within the saving; it nevertheless recorded that the practice shakes the root of free and fair elections and directed the Election Commission to frame guidelines on manifestos.

Harm two: the voter is coerced

The nature of the crime. The elector's decision is not bought but forced, by threat of harm in this world or the next.

Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17, is the case on the divine displeasure limb: speeches appealing to religion and threatening voters with religious consequences interfere with the free exercise of the electoral right, and the secular character of the electoral process must be maintained. Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629, carried the reasoning into the electoral law, a seven judge Bench holding that an appeal for votes on the ground of religion, race, caste, community or language, whether of the candidate or of the voter, is a corrupt practice under section 123(3) of the Representation of the People Act, 1951.

Harm three: the electorate is deceived

The nature of the crime. The elector decides freely but on a false basis, because a lie has been told about a candidate.

How the Code deals with it. Section 175, formerly 171G, punishes whoever, with intent to affect the result of an election, makes or publishes a statement purporting to be a statement of fact which is false, and which he knows or believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate. The punishment is fine.

Section 177, formerly 171-I, punishes a person required by any law or rule having the force of law to keep accounts of election expenses, and failing to keep them, with a fine which may extend to five thousand rupees.

The Sanhita raised both fines from the five hundred rupees they had carried since 1920 and left the ten rupee proviso exactly as drafted.

Harm five: the poll itself is corrupted

The nature of the crime. The count is falsified, because a person votes who is not entitled to, or votes more than once.

How the Code deals with it. Section 172, formerly 171D, defines personation at an election. A person commits it who applies for a voting paper or votes in the name of any other person, whether living or dead, or in a fictitious name; or who, having voted once at such election, applies at the same election for a voting paper in his own name; and whoever abets, procures or attempts to procure the voting by any person in any such way. A proviso saves a person lawfully authorised to vote as a proxy so far as he votes as proxy.

Section 174, formerly 171F, punishes personation with one year, or fine, or both.

Every one of these offences is also a corrupt practice under section 123 of the Representation of the People Act, 1951: bribery under section 123(1), undue influence under section 123(2), the religious appeal under section 123(3), the false statement of fact about personal character under section 123(4), the hiring of vehicles under section 123(5), excess expenditure under section 123(6) and the assistance of Government servants under section 123(7). A corrupt practice proved in an election petition in the High Court under section 80A voids the election under section 100(1)(b), requires the court to name the person under section 99, and may disqualify him under section 8A.

That is a far heavier consequence than a year's imprisonment, and it is why election litigation in India is conducted almost entirely under the Representation of the People Act and almost never under the Penal Code. The day to day preventive work is done by the Election Commission through the Model Code of Conduct, expenditure observers, flying squads, the expense ceiling prescribed under the Conduct of Elections Rules, 1961, and the seizure of cash in transit during the election period, none of which is a criminal sanction at all.

Conclusion. Election crimes attack either the freedom of the elector's decision or the integrity of the count. The Penal Code deals with the first through bribery in sections 170 and 173, undue influence in sections 171 and 174, and the false statement of fact about a candidate's personal character in section 175, and with the second through personation in sections 172 and 174; illegal payments in section 176 and the failure to keep accounts in section 177 protect the equality of the contest. The definitions are careful and the deeming provisions are comprehensive, but the punishments have not moved since 1920, and the real consequence of an election crime in India is the avoidance of the election as a corrupt practice under section 123 of the Representation of the People Act, 1951, not a conviction under the Penal Code.

Section 2(1)(d) defines continuing unlawful activity: an activity prohibited by law which is a cognizable offence punishable with imprisonment of three years or more, undertaken singly or jointly as a member of or on behalf of an organised crime syndicate, in respect of which more than one charge sheet has been filed before a competent court within the preceding period of ten years, and that court has taken cognizance.

Section 2(1)(f) defines an organised crime syndicate: a group of two or more persons acting singly or collectively as a syndicate or gang and indulging in activities of organised crime.

The three clauses interlock, and their combined effect is the single most important proposition about this Act: MCOCA does not apply to a first offender. It applies to a person operating within a syndicate whose recorded past already shows more than one charge sheet within ten years on which a court has taken cognizance. The Act punishes a career, not an incident.

Stage three: interception, sections 13 to 16. Section 13 makes an officer of the Home Department not below the rank of Secretary to Government the Competent Authority. Section 14 requires a written application by a police officer not below Superintendent of Police supervising the investigation, stating the offence, the identity of the applicant and of the head of department authorising the application, and a particular description of the facilities to be intercepted. Section 14(4) requires the Competent Authority to record reasons in writing and to be satisfied of probable cause that the offence is being, has been or is about to be committed, that the communications will yield evidence, that normal modes of enquiry have been tried and failed or would be unlikely to succeed or too dangerous, and that the facilities are connected with the offence.

Section 21(4) imposes twin conditions on regular bail: the Public Prosecutor must be given an opportunity to oppose, and where he opposes, the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Section 21(5) denies bail where the accused was on bail in an offence under the Act on the date of the offence. Section 21(7) requires a police officer seeking custody from judicial custody to file a written statement explaining the reason and any delay.

Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, is what makes section 21(4) workable. The Supreme Court held that the restriction on the power to grant bail must not be pushed too far, that the court need not record a positive finding that the accused has not committed the offence, and that if on a broad probability the court is of the view that the accused may not ultimately be convicted, bail may be granted.

Stage six: property, section 20 and section 4. Section 20(2) allows the Special Court to attach all or any properties of the accused during the trial, with forfeiture on conviction. Section 20(1) allows forfeiture on conviction free from all encumbrances. Section 20(3) provides for a proclamation against an absconder requiring appearance in not less than fifteen and not more than thirty days, attachment of his property applying sections 83 to 85 of the Code, and restoration within six months if he proves he did not abscond. Section 4 punishes possession of unaccountable property on behalf of a member with three to ten years and makes that property liable to attachment and forfeiture; section 3(5) punishes holding property derived from organised crime with three years to life.

Stage seven: sanction and cognizance, section 23(2). No Special Court shall take cognizance of any offence under the Act without the previous sanction of a police officer not below the rank of Additional Director General of Police.

Stage nine: sentence, sections 3 and 4. Death or imprisonment for life with a minimum fine of one lakh where death has resulted; otherwise five years to life with a minimum fine of five lakh, the same range applying to conspiracy, abetment, harbouring and mere membership under section 3(4).

Stage ten: appeal, section 12. An appeal lies to the High Court on facts and on law.

Validity

State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5, upheld sections 13 to 16 as within State legislative competence on the pith and substance doctrine, reversing the Bombay High Court, and affirmed the excision of the words "or under any other Act" from section 21(5) as an unreasonable classification violating Article 14. Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, (2010) 5 SCC 246, upheld the Act as a whole and rejected the argument that the words promoting insurgency made it a law on terrorism repugnant to central legislation.

For full marks, cover: two limbs. State the objectives as the five gaps in the old law that the Act was passed to close, which is a sharper framing than a list of purposes and takes the same space. Then classify the offences by the person who commits them, the outsider, the insider, the publisher and the certifier, which is a classification the examiner will not have seen from most candidates and which maps neatly on to the sections.

The objectives, stated as the gaps they closed

The Act received assent on 9 June 2000 and came into force on 17 October 2000, on the model of the UNCITRAL Model Law on Electronic Commerce commended to member States by United Nations General Assembly resolution A/RES/51/162 of 30 January 1997.

Gap four: interference with a computer was neither a tort nor a crime. Objective: remedies. Chapter IX creates civil liability, with an adjudicating officer under section 46 with jurisdiction up to a claim of five crore rupees; Chapter XI creates the offences.

Gap five: four other statutes assumed paper. Objective: consequential amendment. Sections 91 to 94 amended the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934, through four Schedules, and were themselves omitted as spent by the 2008 amendment with effect from 27 October 2009, the amendments surviving in the amended Acts.

The offences, classified by who commits them

The bridge first. Section 43 makes a person who, without the owner's permission, accesses, downloads, contaminates, damages, disrupts, denies access to or destroys a computer resource liable to pay compensation. Section 66 converts the same conduct into an offence where it is done dishonestly or fraudulently, with three years or fine up to five lakh rupees or both, the two words carrying their Penal Code meanings. Every other offence in Chapter XI can be placed against one of four actors.

The publisher: the person who puts content out. Section 67 punishes publishing or transmitting obscene material in electronic form, three years and five lakh on a first conviction, five years and ten lakh on a second. Section 67A punishes material containing a sexually explicit act, five years and ten lakh, seven years on a second. Section 67B punishes material depicting children, on the same scale, and uniquely reaches a person who collects, seeks, browses or downloads. A proviso exempts from all three any work whose publication is proved to be justified as being for the public good in the interest of science, literature, art or learning, or which is kept or used bona fide for religious purposes. Section 66E punishes the person who captures, publishes or transmits the image of a private area of another without consent, three years or fine up to two lakh.

The provisions that apply to all of them. Section 75 applies the Act to an offence committed outside India by any person, irrespective of nationality, where the conduct involves a computer located in India. Section 77A permits compounding except where the punishment is life or exceeds three years. Section 77B makes offences punishable with three years imprisonment bailable. Section 78 requires investigation by an officer not below Inspector. Sections 84B and 84C punish abetment and attempt, and section 76 provides for confiscation.

What has left the statute book. Section 66A, which punished sending offensive messages, was struck down in Shreya Singhal v. Union of India, (2015) 5 SCC 1, as violating Article 19(1)(a) because its terms were open ended and did not fall within any of the eight subjects in Article 19(2), while the Court upheld section 69A and read section 79(3)(b) down to require a court order or Government notification before an intermediary is fixed with knowledge. Section 66A was finally omitted by the Jan Vishwas (Amendment of Provisions) Act, 2023 with effect from 30 November 2023, eight years after it ceased to be enforceable.

For the intruder and the insider: the security rules. The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, made under section 87 read with section 43A, defined sensitive personal data to include passwords, financial information, health records and biometric information, and required a privacy policy, consent, and adherence to the security standard IS or ISO or IEC 27001 or an approved code of practice. Until the Digital Personal Data Protection Act, 2023 those Rules were the whole of Indian data protection law, and they were made under a power attached to a compensation provision.

For the publisher: the intermediary rules. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 prescribe the due diligence which section 79(2)(c) makes a condition of the safe harbour: a grievance officer, a Chief Compliance Officer and a Resident Grievance Officer for a significant social media intermediary, monthly compliance reports, removal within thirty six hours of a court order or a Government notification, and twenty four hours for material of a sexual nature.

Conclusion. The Act was passed to close five gaps: the legal nullity of an electronic record, the inability of Government to transact electronically, the absence of any way to verify whose signature a public key represented, the absence of a remedy for interference with a computer, and the paper assumptions of four other statutes. Its offences fall into four groups by the actor: the intruder under sections 65, 66, 66B, 70 and 66F, which reaches life imprisonment; the impostor under sections 66C and 66D; the publisher under sections 66E and 67 to 67C; and the person inside the trust infrastructure under sections 71, 73 and 74, with the insider and intermediary provisions in sections 72 and 72A now reduced to money penalties. Section 66A is gone, and section 81 means that within its field the Act displaces the general penal law altogether.

Age alone is therefore not the argument. The argument is that every body which examined the Code recommended substantial reform, that Parliament enacted almost none of it, and that the consequences had to be borne first by litigants and then by the courts.

The reform record

The Law Commission's 42nd Report, 1971. The only comprehensive revision of the Code ever attempted. It examined the Code chapter by chapter and recommended, among much else, the repeal of section 309 on attempt to suicide, revision of the offences against the State, a rationalisation of punishments, and the introduction of new forms of sentence. A Bill was introduced and lapsed. Nothing was enacted.

The Law Commission's 156th Report, 1997. It revisited the Code and again recommended revision of a large number of provisions. Nothing was enacted.

The Malimath Committee on Reforms of the Criminal Justice System, 2003. Chaired by Justice V.S. Malimath, it made a large number of recommendations, including a statutory sentencing policy with guidelines, recognition of the victim as a participant in the criminal process with a right to compensation, and a comprehensive review of the substantive law. Nothing of substance was enacted.

The pattern over fifty years is that recommendations were made, accepted in principle and not enacted, except where a public outrage forced an amendment. A code that is amended only after a catastrophe is not being maintained; it is being patched.

What the courts had to do instead

Because Parliament did not act, the Supreme Court did, and the list is the strongest single body of evidence for the statement.

Sedition. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, saved section 124A only by reading in a requirement of an intention or tendency to create disorder or incite violence, after the Punjab High Court in Tara Singh Gopi Chand v. The State on 28 November 1950 and the Allahabad High Court in Ram Nandan v. State, AIR 1959 All 101, on 16 May 1958 had held the section unconstitutional. Parliament never enacted the reading, and on 11 May 2022, in S.G. Vombatkere v. Union of India, the Supreme Court had to keep the whole section in abeyance.

Corporate liability. Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530, held by a Constitution Bench that a company may be prosecuted and punished for an offence carrying a mandatory sentence of imprisonment and fine, the court imposing the fine alone, because the Code, drafted before the modern company, contains no attribution rule.

Five provisions of a criminal code removed or rewritten by constitutional adjudication, and the two most important sentencing doctrines supplied by judgment rather than statute, is not a healthy condition for a codified criminal law. The function of a code is that a citizen and a police officer can read it and know the law. When the text says one thing and the law is another, the code has stopped performing its function.

The structural defects behind the record

No sentencing law. Section 53 lists the punishments; the Code prescribes maxima and almost no minima and supplies no principles, no aggravating or mitigating factors and no requirement of reasons. It contains no community service, no victim restitution and no plea bargaining.

It leaves the structural defects untouched. There is no sentencing chapter. There is no corporate attribution rule and no general mens rea provision. The marital rape exception survives as the exception to section 63. And on the offence against the State the Sanhita has moved backwards: section 152 raises the lesser maximum from three years to seven, and its operative words, "subversive activities" and "encourages feelings of separatist activities", are wider than section 124A's and carry no incitement requirement, which is precisely the limit Kedar Nath Singh had to import. On 8 August 2025 the Supreme Court agreed to examine the validity of section 152 in the pending proceedings.

The three statutes as a package, and what a student must now know

The Bharatiya Nyaya Sanhita, 2023 did not arrive alone, and an answer on reform of the Penal Code is incomplete without the other two, because several of the complaints made against the Code were in truth complaints about procedure.

The Bharatiya Sakshya Adhiniyam, 2023 replaced the Indian Evidence Act, 1872. Section 63 replaces section 65B on the admissibility of electronic records and, for the first time, supplies a schedule for the certificate which Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, had held to be a mandatory condition precedent. Section 23 replaces sections 25 and 26 on confessions to police officers, which is the rule that section 18 of the Maharashtra Control of Organised Crime Act, 1999 displaces.

What a student must now know is the renumbering itself, and it is worth saying plainly that this is a real cost of the reform. The whole body of decided law is stated in the old numbers. Kedar Nath Singh is about section 124A, Ranjit Udeshi about section 292, Ramji Lal Modi about section 295A, Ratlam Municipality about section 133 of the Code, and Anvar P.V. about section 65B. None of those numbers exists any more, and none of the judgments has been rewritten. For at least a generation a lawyer will have to hold both sets of numbers in mind, which is the price of a recodification that renumbered far more than it changed.

For full marks, cover: two notes of twelve and a half marks each. The paper letters them C and D because it continued the lettering from its earlier question; that is the paper's slip and is reproduced here. For C, the marks are in showing that a nuisance can be attacked by three different routes and that the penal route is the weakest. For D, keep the note focused on the offences rather than on the history of the test, and get the exemptions exactly right.

Route one: the penal route. Section 292 of the Sanhita, formerly 290, punishes a public nuisance in any case not otherwise punishable with a fine which may extend to one thousand rupees, raised from the two hundred it carried since 1860. Section 293, formerly 291, punishes a person who repeats or continues a public nuisance after being enjoined by a public servant having lawful authority not to do so, with simple imprisonment up to six months, or fine up to five thousand rupees, or both. The specific nuisances in sections 271 to 291 of the Sanhita, spreading infection, disobeying a quarantine rule, adulterating food, drink or drugs, fouling water, making the atmosphere noxious, rash driving, obstruction of a public way and negligent conduct with poison, fire, explosives, machinery, buildings and animals, carry their own penalties.

This route is the weakest of the three, because a fine of one thousand rupees is no deterrent to a commercial polluter and because a criminal prosecution produces no remedy for the nuisance itself.

This is the route that works, and Municipal Council, Ratlam v. Vardhichand, (1980) 4 SCC 162, is the reason. Residents of a Ratlam locality complained of open drains, effluent from a nearby alcohol plant and the absence of sanitation, and the Sub-divisional Magistrate directed the municipality to construct drains. The municipality pleaded lack of funds. Krishna Iyer J. rejected the plea, holding that a statutory body cannot plead financial inability to justify a public nuisance affecting the health of the community, that a decency and dignity are non negotiable facets of human rights, and that section 133 is a potent instrument of social justice rather than a dead letter.

D) Offences of obscenity

The three offences. Sections 292 to 294 of the Indian Penal Code are now sections 294 to 296 of the Bharatiya Nyaya Sanhita, 2023.

Section 294, formerly 292, sale and circulation of obscene matter. Sub-section (1) supplies the test: a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, including display of any content in electronic form, is deemed obscene if it is lascivious or appeals to the prurient interest, or if its effect, taken as a whole, tends to deprave and corrupt persons likely to read, see or hear it. Sub-section (2) punishes selling, letting to hire, 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. First conviction, up to two years and fine up to five thousand rupees; second, up to five years and fine up to ten thousand.

Section 295, formerly 293, sale to a child. Selling, letting to hire, distributing, exhibiting or circulating such an object to a child, three years and fine up to two thousand rupees on a first conviction, seven years and five thousand on a second. The aggravation is the age of the recipient.

Limb (b) exempts any representation sculptured, engraved, painted or otherwise represented on or in (i) any ancient monument within the Ancient Monuments and Archaeological Sites and Remains Act, 1958, or (ii) any temple, or on any car used for the conveyance of idols, or kept or used for a religious purpose. This limb is a categorical exclusion: nothing has to be proved and the material simply falls outside the section, which is why the erotic sculpture at Khajuraho and Konark is not an offence.

The test the courts apply. 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, applied the test in R. v. Hicklin, (1868) LR 3 QB 360, and held that knowledge of the contents is not an ingredient, while adding that sex and obscenity are not synonymous. Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257, discarded Hicklin as no longer good law in India and substituted the contemporary community standards test, applied to the work as a whole and in the light of its message, quashing a prosecution over a photograph of a tennis player and his fiancée published as a protest against apartheid. Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289, held that vulgarity is not obscenity and that the judge must read the work first as the author and then as the likely reader.