LLM Group 5 Criminal Law and Criminal Administration Penal Laws 2019 Question Paper with Solutions

(a) Offences under the Information Technology Act, 2000

The scheme has two tiers. Chapter IX creates civil liability and Chapter XI creates offences, and the bridge between them is section 66. Section 43 makes a person who, without the permission of the owner, accesses a computer, downloads or copies data, introduces a contaminant, damages, disrupts, denies access or destroys information liable to pay compensation, adjudicated by an adjudicating officer under section 46 up to a claim of five crore rupees. Section 66 then provides that if any person does dishonestly or fraudulently any act referred to in section 43, he commits an offence punishable with imprisonment up to three years or fine up to five lakh rupees or both, the words dishonestly and fraudulently bearing their Penal Code meanings.

Offences against data and systems. Section 65 punishes knowingly or intentionally concealing, destroying or altering computer source code required by law to be maintained, with three years or fine up to two lakh rupees or both. Section 66B punishes dishonestly receiving or retaining a stolen computer resource or communication device. Section 70 makes unauthorised access to a protected system, notified because it affects Critical Information Infrastructure, punishable with imprisonment up to ten years and fine.

Offences against the State. Section 66F punishes cyber terrorism, committed either by denying access, penetrating without authorisation or introducing a contaminant with intent to threaten the unity, integrity, security or sovereignty of India and thereby causing death, injury, damage or disruption of essential services, or by knowingly obtaining access to information restricted for reasons of the security of the State or foreign relations with reason to believe it may injure those interests. The punishment extends to imprisonment for life.

Offences against the certification scheme. Section 71 punishes misrepresentation or suppression of a material fact to the Controller or a Certifying Authority; section 73 publishing an electronic signature certificate false in material particulars; section 74 creating or publishing such a certificate for a fraudulent or unlawful purpose. Each carries two years or fine up to one lakh or both.

Sharat Babu Digumarti v. Govt. (NCT of Delhi), (2017) 2 SCC 18, fixes the boundary with the general law. The manager responsible for content on an online marketplace on which an obscene clip was listed was discharged under section 67 but kept on charge under sections 292 and 294 of the Indian Penal Code. The Supreme Court quashed those charges, holding that where the offence relates to an electronic record the Information Technology Act is a special law which, by force of section 81, overrides the general provision, and that a person discharged under the special law cannot be prosecuted under the general one for the same conduct.

(b) The Cyber Regulations Appellate Tribunal

The name. The Act as passed in 2000 established the Cyber Regulations Appellate Tribunal by section 48. The Information Technology (Amendment) Act, 2008, in force from 27 October 2009, renamed it the Cyber Appellate Tribunal. It is that body the question describes.

Its jurisdiction. Section 57 gave an appeal to any person aggrieved by an order of the Controller or an adjudicating officer, within forty five days, with power to condone delay. Section 58 provided that the Tribunal is not bound by the Code of Civil Procedure but is guided by the principles of natural justice, while possessing the powers of a civil court in respect of summoning witnesses, discovery, receiving evidence on affidavit, requisitioning records and reviewing its decisions, and made its proceedings judicial proceedings for the purposes of sections 193 and 228 of the Indian Penal Code. Section 59 gave a right of legal representation, section 60 fixed limitation, section 61 barred the jurisdiction of the civil court over any matter the adjudicating officer or the Tribunal was empowered to determine, and section 62 gave a further appeal to the High Court within sixty days on any question of fact or law.

Conclusion. The offences under the Act divide into five groups, against data and systems, against the person, against content, against the State and against the certification scheme, with section 66 converting the civil wrong in section 43 into a crime when the act is done dishonestly or fraudulently, and section 66F reaching imprisonment for life. The Cyber Regulations Appellate Tribunal, renamed the Cyber Appellate Tribunal in 2009, was the specialist appellate forum for the civil side of that scheme; it had no Chairperson from 2011, and the Finance Act, 2017 abolished its machinery from 26 May 2017 and transferred its jurisdiction to the Telecom Disputes Settlement and Appellate Tribunal, so a candidate writing today must describe it in the past tense.

Continuing unlawful activity is separately defined by section 2(1)(d) and is the filter that keeps the Act off ordinary criminals. It means 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 of the offence.

Organised crime syndicate is defined by section 2(1)(f) 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 three clauses interlock. There must be a syndicate of at least two; the accused must act as a member of it or on its behalf; the conduct must be a cognizable offence of three years or more; the method must be violence, threat, intimidation, coercion or other unlawful means; the objective must be pecuniary or economic advantage or the promotion of insurgency; and the record must already show two charge sheets in ten years on which cognizance was taken. MCOCA cannot be applied to a first offender, however grave the act, and that single consequence is what most examiners are testing.

The forum, sections 5 to 12. The State Government may constitute one or more Special Courts by notification. A Special Court is presided over by a judge appointed 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 Additional Sessions Judge. Section 6 makes every offence under the Act triable only by the Special Court; section 7 allows it to try connected offences; section 8 requires a Public Prosecutor of at least ten years standing; section 9 allows cognizance without committal; section 10 gives its trials precedence; section 11 allows transfer to a regular court; and section 12 gives an appeal to the High Court.

Evidence, sections 17, 18 and 22. Section 17 allows the Special Court to treat as having probative value the facts that the accused was previously bound over under section 107 or 110 of the Code, was detained under a preventive detention law, or was previously prosecuted in the Special Court, and raises presumptions about unexplained property and about kidnapping being for ransom. Section 18 makes a confession recorded by a police officer not below Superintendent of Police, in writing or on a mechanical device, admissible against the maker and against a co-accused, abettor or conspirator charged and tried in the same case, subject to a warning, a certificate of voluntariness with date and time, forwarding to the Chief Metropolitan or Chief Judicial Magistrate, production of the maker before him, and medical examination where torture is alleged. Section 22 raises presumptions where unlawful arms or fingerprints are proved, and where financial assistance to an accused is proved.

Sections 24 to 30 punish a public servant who fails in his duties, give the Act overriding effect, protect action taken in good faith, require the annual report, and confer rule making powers on the High Court and the State Government.

The constitutional challenges

State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5, decided on 1 September 2008, is the leading case. The Bombay High Court had struck down sections 13 to 16 as beyond State legislative competence, interception of communications belonging to Entry 31 of the Union List, and had struck down the words "or under any other Act" in section 21(5).

Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, made 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 is not required to record a positive finding that the accused has not committed the offence, and that where on a broad probability the court thinks the accused may not ultimately be convicted, bail may be granted.

Prasad Shrikant Purohit v. State of Maharashtra, (2015) 7 SCC 440, held that the prior approval under section 23(1)(a) must reflect a real application of mind by the approving officer to the organised crime alleged and to the material placed before him, and is not a formality; its absence vitiates the prosecution.

Conclusion. Organised crime under MCOCA is continuing unlawful activity, carried on by or for a syndicate of two or more persons, by violence or intimidation, for pecuniary or economic advantage, where the record already shows more than one charge sheet in ten years on which cognizance was taken. The Act built around that definition is a machine for dismantling an enterprise: heavy minimum punishments and minimum fines, a Special Court of Sessions Judge rank, a self contained interception code with a Review Committee, an admissible police confession, witness anonymity, forfeiture and attachment of property, and a procedure that removes anticipatory bail and extends custody to 180 days. The Supreme Court has kept the machine standing while tightening every gate on the way in, upholding interception in Bharat Shanti Lal Shah and competence in Zameer Ahmed, reading section 21(4) down in Ranjitsing Sharma, and requiring a real approval in Prasad Shrikant Purohit.

The chapter is arranged on a consistent plan: sections 170, 171 and 172 define bribery, undue influence and personation, and sections 173 and 174 punish them; sections 175, 176 and 177 create three further offences that carry their own punishment in the same section.

Section 169, replacing section 171A, supplies the two definitions the chapter uses. 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 of electoral right covers withdrawal and abstention, the chapter reaches money paid to a candidate to withdraw and money paid to a voter to stay at home.

The offence is also an electoral wrong. Personation is a corrupt practice by force of section 123 of the Representation of the People Act, 1951 read with section 136 of that Act, which makes it an electoral offence, and a corrupt practice proved in an election petition voids the election under section 100(1)(b) of that Act and may attract disqualification under section 8A. Section 62(5) of the same Act, in a related provision, bars a person in prison or in police custody from voting, and Anukul Chandra Pradhan v. Union of India, (1997) 6 SCC 1, upheld that bar as a reasonable restriction directed at keeping persons with a criminal background out of the electoral process, holding that the right to vote is a statutory right subject to the conditions the statute imposes.

(b) Bribery

Section 170, replacing section 171B, defines bribery in two limbs, and it is important that both the giver and the taker commit the offence.

Section 173, replacing section 171E, punishes bribery with imprisonment which may extend to one year, or with fine, or with both, with a proviso that bribery by treating shall be punished with fine only. The Explanation defines treating as that form of bribery where the gratification consists in food, drink, entertainment or provision.

The word gratification is not confined to money. It covers any satisfaction of a want, which is how the free supply of liquor, a meal, transport to the polling booth, a household article or a promise of employment is brought within the section.

Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17, is worth adding because it shows the chapter's allied offence at work. Speeches at an election had appealed to religion and threatened voters with religious consequences. The Supreme Court held that such appeals interfere with the free exercise of the electoral right and that the secular character of the electoral process must be maintained. The reasoning was carried further in Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629, where a seven judge Bench held 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.

Assessment

Two criticisms are standard and both are about the punishment rather than the definition.

Cognizance. Every offence in Chapter IX is a non cognizable offence, so a police officer cannot register a case and investigate on his own; he requires the order of a Magistrate under section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023, replacing section 155 of the Code of Criminal Procedure. That single feature accounts for most of the difference between the number of election malpractices alleged and the number of prosecutions launched.

Who complains. In practice the complainant is a defeated candidate, and by the time the result is known his interest lies in the election petition rather than in a criminal prosecution, because the petition can unseat the winner. A prosecution can only punish, and punish lightly.

Conclusion. Chapter IXA of the Penal Code, now Chapter IX of the Sanhita, protects the freedom of the electoral choice by separating definition from punishment. Personation under section 172 covers voting in another's name whether living, dead or fictitious, voting twice in one's own name, and procuring either, and is punished by section 174 with one year or fine. Bribery under section 170 covers both the giver and the taker of any gratification aimed at an electoral right, with deeming provisions for offers and attempts, and is punished by section 173 with one year or fine, and by fine only where it takes the form of treating. The line between the two and lawful politics is drawn by the saving for a declaration of public policy, which S. Subramaniam Balaji held protects an election manifesto, and the real deterrent remains the avoidance of the election as a corrupt practice rather than the criminal penalty.

One, a uniform age of eighteen. The Juvenile Justice Act, 1986 had fixed sixteen for boys and eighteen for girls, so a boy of seventeen went to the ordinary criminal courts. Section 2(k) of the 2000 Act made the age eighteen for both, 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.

Two, separation of the two streams. The Act deals with two entirely different children and gives each its own authority: the Juvenile Justice Board under section 4 for the juvenile in conflict with law, and the Child Welfare Committee under section 29 for the child in need of care and protection. Section 18 forbade any joint proceeding of a juvenile with a person who is not a juvenile.

Three, decriminalisation of the disposition. Section 15 provided a graded set of orders ending at three years in a special home; section 16 forbade the death sentence, life imprisonment and committal to prison in default of fine or security; and section 19 provided that a finding of the Board carries no disqualification attaching to a conviction, with removal of the records after the prescribed period. Section 21 prohibited publication of the name, address or school of a juvenile or any particular that could lead to identification.

First, the establishment or recognition of after-care organisations and the functions they may perform. Second, a scheme of after care programme to be followed by them for taking care of juveniles or children after they leave special homes and children's homes, for the purpose of enabling them to lead an honest, industrious and useful life. Third, the preparation and submission by the probation officer of a report on each juvenile or child before discharge, on the necessity and nature of the after care required, its period and its supervision, and thereafter progress reports. Fourth, the standards and nature of services to be maintained by such organisations.

A proviso limited the period a juvenile or child could stay, so that after care remained a transition and did not become a further term of institutional custody.

The role, in substance, was to answer the question the rest of the Act ignored: what happens to a boy released at eighteen from a special home, with a record, into the same neighbourhood and family that produced the offence. Without after care the institutional chain simply returns the child to the conditions that caused the offending, which is why re-offending is concentrated in the first year after release.

Observation home, section 8. The State Government could establish and maintain, by itself or under an agreement with a voluntary organisation, observation homes in every district or group of districts for the temporary reception of a juvenile in conflict with law during the pendency of any inquiry. Every home had to provide accommodation, maintenance, facilities for education, vocational training and rehabilitation, and had to segregate juveniles by age, by sex and by the nature of the offence and the length of stay. Section 12(2) required a juvenile refused bail by the police to be kept only in an observation home, and section 12(3) required the Board, if it refused bail, to send him to an observation home or a place of safety rather than to prison.

Special home, section 9. The State Government could establish and maintain special homes for the reception and rehabilitation of a juvenile found on inquiry to have committed an offence, again with segregation by age and by the nature of the offence, and with the services prescribed by rules. Section 15(1)(g) capped an order sending a juvenile there at three years, and the proviso to section 15 allowed the Board to reduce the period having regard to the nature of the offence and the circumstances of the case.

What replaced them

The 2015 Act renumbered and extended the list. Observation homes are section 47, special homes section 48, Children's Homes section 50, open shelters section 43 in place of shelter homes, fit facilities section 51 and fit persons section 52. The Act adds two institutions the 2000 Act did not have: foster care under section 44, and the place of safety under sections 49 and 2(46), defined as any place or institution not being a police lockup or a jail, created for children above sixteen alleged or found to have committed heinous offences, in which section 19(3) requires a child tried as an adult to be kept until he attains twenty one. Section 41 now makes registration of every child care institution compulsory whether or not it receives Government aid.

Conclusion. The objectives of the 2000 Act were a uniform age of eighteen in compliance with the Convention on the Rights of the Child, strict separation of the child in conflict with law from the child in need of care and protection, a disposition scheme that excluded death, life imprisonment and prison, and rehabilitation as the purpose of every order. After care under section 44 was a rule making power directed at the child leaving a special or children's home, now converted by section 46 of the 2015 Act into support of up to three years for the child leaving an institution at eighteen. The homes divide by stream and by stage: observation home during the inquiry, special home for up to three years after it, children's home for the child in need of care and protection, and shelter home as a drop in centre, with the 2015 Act adding foster care and the place of safety for the sixteen to eighteen group.

Its defect is not its architecture. It is that the Code was written to govern a colonial possession, that its criminal policy is retributive and its penal philosophy pre-modern, and that a century and a half of amendment has been made piecemeal, in response to particular events, without ever revisiting the whole.

Defect one: offences drafted to protect the ruler rather than the citizen

Sedition, section 124A, was inserted in 1870 and punished exciting disaffection towards "the Government established by law". Two High Courts held it unconstitutional, in Tara Singh Gopi Chand v. The State, decided by the Punjab High Court on 28 November 1950, and in Ram Nandan v. State, AIR 1959 All 101, decided by the Allahabad High Court on 16 May 1958, the latter holding that a mere possibility of public disorder is not enough to restrict speech. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, upheld it, but only by reading in a requirement of incitement to violence or public disorder that the section did not contain. That reading was never enacted, so for sixty years police stations registered cases on the unamended words. On 11 May 2022, in S.G. Vombatkere v. Union of India, the Supreme Court directed that all proceedings under section 124A be kept in abeyance, an order without real precedent, which is the strongest possible evidence that the section needed reform.

Section 497, adultery, punished only the man, treated the wife as the property of her husband and gave no offence to a wife whose husband committed adultery. Joseph Shine v. Union of India, (2019) 3 SCC 39, decided on 27 September 2018, struck it down as violating Articles 14, 15 and 21, holding that a provision that treats a woman as the chattel of her husband cannot survive.

Both provisions had been on the statute book for over 150 years, and both were removed by the Supreme Court and not by Parliament. That division of labour is itself the argument for codified reform.

Defect three: gaps that had to be filled by amendment after an outrage

The Code's amendment history is a history of reaction. The Criminal Law (Amendment) Act, 2013, which redefined rape in section 375, created sections 354A to 354D on sexual harassment, stalking, voyeurism and disrobing, and inserted section 326A and 326B on acid attacks, followed the Delhi gang rape of December 2012 and the report of the Justice J.S. Verma Committee. The Criminal Law (Amendment) Act, 2018 created sections 376AB and 376DB after a further case. Each amendment was sound; each was also proof that the Code contained no general principle from which the new offence could have been derived.

Defect five: corporate and economic criminality

The Code was drafted before the modern company. It contains no general provision on corporate criminal liability, and the courts had to construct one: in Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530, a Constitution Bench held that a company can be prosecuted and punished for an offence carrying a mandatory sentence of imprisonment and fine, the court imposing the fine alone. Economic offences of scale, money laundering, organised financial fraud, insider dealing and cyber crime, are all dealt with by special statutes outside the Code.

What has now happened

Parliament has accepted the argument. The Bharatiya Nyaya Sanhita, 2023, Act 45 of 2023, came into force on 1 July 2024, and section 358 repeals the Indian Penal Code. The reform it delivers is real in parts:

• Section 111 creates a general offence of organised crime and section 112 of petty organised crime, closing the gap that had forced States to enact laws such as the Maharashtra Control of Organised Crime Act, 1999.
• Section 113 creates the offence of a terrorist act within the ordinary criminal law.

The two statutes that came with it, and what the reform actually cost

An answer on reform of the Penal Code is incomplete without the other two statutes of 2023, because several of the complaints made against the Code were complaints about procedure and evidence rather than about the definition of offences.

The Bharatiya Nagarik Suraksha Sanhita, 2023, replacing the Code of Criminal Procedure, 1973, addressed some of them. Section 173(1) provides for a zero first information report, so that information about a cognizable offence may be recorded irrespective of where the offence was committed, which answers the commonest practical complaint of a victim. Section 187 restructures custody. Section 152 carries forward the conditional order for the removal of a public nuisance which Municipal Council, Ratlam v. Vardhichand, (1980) 4 SCC 162, made into an instrument of social justice. Sections 98 and 99 carry forward the power to forfeit an offending publication and the right to apply to the High Court to set the forfeiture aside, which Baragur Ramachandrappa v. State of Karnataka, (2007) 5 SCC 11, considered.

Conclusion. The statement is justified on five grounds: the Code retained offences drafted to protect a colonial government, of which sedition is the clearest; it retained provisions that could not survive the Constitution, so that sections 377 and 497 had to be struck down by the courts rather than repealed by Parliament; it grew by reaction to particular outrages rather than by principle; it prescribed punishments without any sentencing law; and it was drafted before the company, the computer and the organised syndicate. Parliament has now acted, and the Bharatiya Nyaya Sanhita, 2023 answers the third, fourth and fifth of those complaints in part. It does not answer the first, because section 152 is wider than the section it replaces, and the constitutional challenge to it is pending before the Supreme Court.

Explanation 1 provided that the expression disaffection includes disloyalty and all feelings of enmity. Explanation 2 saved comments expressing disapprobation of the measures of the Government with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection. Explanation 3 saved comments on the administrative or other action of the Government on the same terms.

Four features of the drafting matter. The offence is complete on an attempt to excite, so no consequence need follow. The object protected is the Government established by law, not the State, the Constitution or the nation. The mental element is not stated. And "or otherwise" makes the means unlimited.

The punishment

The punishment ran in three tiers within a single sentence:

• imprisonment for life, to which fine may be added; or
• imprisonment which may extend to three years, to which fine may be added; or
• fine alone.

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

Moment two: the constitutional challenges, and the First Amendment

Romesh Thappar v. State of Madras, AIR 1950 SC 124, and Brij Bhushan v. State of Delhi, AIR 1950 SC 129, held that restrictions on speech in the interests of public safety and public order were not saved by Article 19(2) as it then stood, which spoke only of undermining the security of the State or tending to overthrow it. The Constitution (First Amendment) Act, 1951 responded by inserting public order into Article 19(2).

Between those decisions and the amendment, the Punjab High Court in Tara Singh Gopi Chand v. The State, decided on 28 November 1950, held section 124A unconstitutional as violating Article 19(1)(a). Eight years later, and after the First Amendment, the Allahabad High Court in Ram Nandan v. State, AIR 1959 All 101, decided on 16 May 1958, again held it ultra vires, on the ground that it restricted speech in a manner not in the interest of the general public, and that a mere possibility of public disorder cannot justify a restriction on freedom of speech.

The application cases show the limit at work. Balwant Singh v. State of Punjab, (1995) 3 SCC 214, set aside the convictions of two men who raised pro Khalistan slogans in a Chandigarh street shortly after the assassination of Indira Gandhi, holding that slogans raised twice which evoked no response from anyone and caused no disturbance cannot be sedition. Bilal Ahmed Kaloo v. State of Andhra Pradesh, decided on 6 August 1997, set aside a sedition conviction where the charge contained no allegation that the accused's acts were directed against the Government of India at all, and where the courts below had run sections 124A, 153A and 505 together without finding the ingredients of any of them. Vinod Dua v. Union of India, (2021) SCC OnLine SC 414, quashed a first information report against a journalist for a broadcast criticising the Government's handling of the pandemic, holding that every journalist is entitled to the protection of Kedar Nath Singh.

Second, the procedural consequences were the real punishment. Because the offence was cognizable and non bailable, the ordinary consequence of an allegation was arrest and custody, a bail application, and a trial lasting years, ending in a very low conviction rate. A punishment structure that produces very few convictions and a great many detentions is calibrated not to the harm but to the deterrence of speech, which is precisely what Article 19(1)(a) forbids.

Third, the reading down was never enacted. Kedar Nath Singh saved the section in 1962 by importing an incitement requirement. Parliament never amended the text. A police officer registering a case in 2020 read the same words Strachey J. construed in 1897. That gap between the statute and its authoritative construction is the single strongest argument against the provision, and it is what made the 2022 abeyance necessary.

Three of those changes are improvements: the protected object is now the State rather than the Government, the mental element is on the face of the section, and the saving explanation survives. Two are not: the lesser maximum has more than doubled from three years to seven, and the operative words are wider than section 124A's and contain no incitement requirement, which is exactly the limit Kedar Nath Singh had to supply. On 8 August 2025 a Bench led by the Chief Justice agreed to examine section 152 in the same proceedings.

Conclusion. Sedition under section 124A was the exciting, or the attempt to excite, of hatred, contempt or disaffection towards the Government established by law, saved from unconstitutionality only by the incitement limit Kedar Nath Singh read into it in 1962 and never enacted. The punishment, a range from a fine to imprisonment for life attached to a cognizable and non bailable offence, was not justified, because it was ungraded, because the process was the penalty, and because the words on the statute book never matched the law the Supreme Court had declared. Section 152 of the Sanhita has corrected the object of protection and the mental element while widening the conduct and raising the term, and until the Constitution Bench rules the question the Court has been asked since 2021 is still open.

Section 292(1), now section 294(1), defines the standard. A book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, including display of any content in electronic form under the Sanhita, is deemed obscene 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 who are likely, having regard to all relevant circumstances, to read, see or hear it.

Section 292(2), now section 294(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. Under the Sanhita, 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.

Section 293, now section 295, punishes the same conduct towards a child, more severely. 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.

Samaresh Bose v. Amal Mitra, (1985) 4 SCC 289, supplies the method by which a judge is to decide. He must first place himself in the position of the author to grasp the theme and its treatment, then in the position of the likely reader of every age group, and only then apply his own judgment; and he must remember that vulgarity, which arouses disgust and revulsion, is not obscenity, which has the tendency to deprave and corrupt.

The exemptions. The Exception, now the Exception to section 294, has two limbs. Limb (a) exempts any book, pamphlet, paper, writing, drawing, painting, representation or figure (i) the publication of which is proved to be justified as being for the public good on the ground that it 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. 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 any religious purpose. Limb (b) is a categorical exclusion, which is why the erotic sculpture at Khajuraho and Konark is outside the section altogether; limb (a)(i) is a defence which the person claiming it must prove.

The definition of public nuisance. Section 270, formerly section 268, provides that a person is guilty of a public nuisance who does any act, or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. It adds the rule that decides most cases: a common nuisance is not excused on the ground that it causes some convenience or advantage.

Spread of infection. Section 271, formerly 269, punishes a negligent act which the accused knew or had reason to believe was likely to spread the infection of a disease dangerous to life. Section 272, formerly 270, punishes the same act done malignantly, and carries the heavier sentence. Section 273, formerly 271, punishes knowing disobedience to a quarantine rule. These three, with the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005, carried the prosecutions of 2020 and 2021.

The residual provisions. Section 292, formerly 290, punishes a public nuisance not otherwise provided for with a fine up to one thousand rupees, and section 293, formerly 291, punishes continuing a nuisance after an injunction by a public servant with simple imprisonment up to six months or fine up to five thousand or both. The preventive power sits in the procedural code: section 133 of the Code of Criminal Procedure, now section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023, allows a Magistrate to make a conditional order for the removal of a public nuisance.

Municipal Council, Ratlam v. Vardhichand, (1980) 4 SCC 162, is the leading case. 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 under section 133. 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, and that section 133 is a potent instrument of social justice and not a dead letter.

Conclusion. On obscenity the definition is unchanged since 1860 but the test is not: Ranjit Udeshi applied Hicklin, Aveek Sarkar replaced it in 2014 with contemporary community standards applied to the work as a whole, and Samaresh Bose supplies the method, while the Exception exempts work proved to be for the public good in science, literature, art or learning, work used bona fide for religious purposes, and, categorically, representations on ancient monuments and temples. On public health the chapter turns on section 270's rule that common injury is not excused by the convenience it also brings, enforced in Ratlam Municipality against a municipality pleading poverty and in Murli Deora against a habit, and its weakness is that the penalties have never been raised, which is why the effective statutes are the Drugs and Cosmetics Act, 1940 and the Food Safety and Standards Act, 2006.

For full marks, cover: two notes of twelve and a half marks each. For A, take each institution separately and give its establishing section, who is sent there, by whom, and for how long, and finish with what the 2015 Act added; a bare list earns half the marks. For B, do not stop at the Penal Code, because the effective law on public health offences is elsewhere, and saying so is the point of the note.

A. Different types of homes under the Juvenile Justice Act, 2000

The Act created four institutions and recognised two further placements. Everything in the classification follows from one distinction: the juvenile in conflict with law under section 2(l), who is sent by the Juvenile Justice Board, and the child in need of care and protection under section 2(d), who is sent by the Child Welfare Committee.

Special home, section 9. Established and maintained by the State Government in the same manner, for the reception and rehabilitation of a juvenile in conflict with law found on inquiry to have committed an offence. Segregation by age and by nature of offence was again required. Placement is by an order under section 15(1)(g), and the maximum period is three years, the proviso to section 15 permitting a shorter period having regard to the nature of the offence and the circumstances. The purpose stated by the Act is reformative: education, vocational training and treatment.

Children's home, section 34. Established and maintained by the State Government in every district or group of districts for the reception of a child in need of care and protection during the pendency of an inquiry and subsequently for his care, treatment, education, training, development and rehabilitation. The child here has committed no offence: he has been abandoned, or is found begging or as a street child or a working child under section 2(d)(ia) as inserted by the amendment of 2006, or his guardian is unfit. Placement is by the Child Welfare Committee under section 29, never by the Board.

What the 2015 Act added. The successors are observation homes in section 47, special homes in section 48, Children's Homes in section 50, open shelters in section 43 in place of shelter homes, fit facilities in section 51 and fit persons in section 52. Two institutions are new. Foster care under section 44 allows a child in need of care and protection to be placed in a family other than his own. The place of safety under section 49, defined in section 2(46), is any place or institution not being a police lockup or a jail, established separately or attached to an observation home or special home, to receive a child alleged or found to be in conflict with law by an order of the Board or the Children's Court, both during inquiry and during rehabilitation after a finding of guilt. It was created for the sixteen to eighteen group, and section 19(3) requires a child tried as an adult to be kept there until he attains twenty one before any transfer to jail.

Registration and inspection. The most important structural change is section 41 of the 2015 Act, which makes registration of every child care institution compulsory whether or not it receives Government aid, and section 54, which provides for inspection committees. Both were Parliament's answer to the recurring failures of unregistered homes.

The organising provision. Section 270, formerly section 268, defines public nuisance as an act or illegal omission causing common injury, danger or annoyance to the public, or to people in general dwelling or occupying property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. It adds the rule that decides contested cases: a common nuisance is not excused on the ground that it causes some convenience or advantage.

The offences, by the interest protected.

Against the spread of disease. Section 271, a negligent act likely to spread the infection of a disease dangerous to life, where the accused knew or had reason to believe it likely; section 272, the same act done malignantly; section 273, knowing disobedience to a quarantine rule.

Against contaminated food and drink. Section 274, adulterating an article of food or drink so as to make it noxious with intent or knowledge that it will be sold; section 275, selling or offering for sale food or drink rendered noxious or unfit, knowing or having reason to believe it so.

The effective remedy is preventive rather than punitive. 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 public nuisance, and sections 153 to 162 of the Sanhita carry that order through to an absolute order, an injunction pending inquiry and a prohibition on repetition.

Municipal Council, Ratlam v. Vardhichand, (1980) 4 SCC 162, is the case that demonstrates it. Residents complained of open drains, effluent from an alcohol plant and the absence of sanitation, and the Sub-Divisional Magistrate directed the municipality to build drains under section 133. The municipality pleaded lack of funds. Krishna Iyer J. held that a statutory body cannot plead financial inability to justify a public nuisance affecting the health of the community, that section 133 is a potent instrument of social justice, and directed the drains to be constructed.

Conclusion. The 2000 Act's homes divide by stream and by stage: the observation home under section 8 during the inquiry, the special home under section 9 for up to three years after it, the children's home under section 34 for the child in need of care and protection, and the shelter home under section 37 as a drop in centre, with the 2015 Act adding foster care and the place of safety and, by section 41, making registration of every institution compulsory. The public health offences in sections 270 to 280 of the Sanhita protect against disease, contaminated food, contaminated medicine and fouled water and air, and their weakness is that they carry 1860 penalties, which is why enforcement runs through the Drugs and Cosmetics Act, 1940, the Food Safety and Standards Act, 2006, and the Magistrate's preventive power in section 152 of the Bharatiya Nagarik Suraksha Sanhita.

Section 169, replacing section 171A, defines the two terms on which the whole chapter rests. 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 covers withdrawal and abstention as well as standing and voting, the chapter reaches money paid to a candidate to withdraw and money paid to a voter to stay away from the booth.

Gratification

Gratification is not an offence. It is the subject matter of bribery, and the Penal Code deliberately left it undefined in this chapter so that it would not be confined to money.

In its ordinary legal sense in Indian criminal law, gratification means anything which satisfies a want or gives pleasure or advantage, and it is not restricted to pecuniary gratification or to gratification estimable in money. On that construction the following have all been treated as gratification at an election: cash, liquor, a meal, transport to the polling station, a household article, the waiver of a debt, a promise of employment, and the promise of a post after the election.

A person commits bribery who gives a gratification to any person with the object of inducing him or any other person to exercise an electoral right, or of rewarding any person for having exercised such a right; or who accepts any gratification, for himself or for another, as a reward for exercising such a right, or for inducing or attempting to induce any other person to exercise it.

Section 173, replacing section 171E, punishes bribery with imprisonment which may extend to one year, or with fine, or with both, with a proviso that bribery by treating shall be punished with fine only. The Explanation defines treating as that form of bribery where the gratification consists in food, drink, entertainment or provision. The lower penalty for treating reflects a nineteenth century view that hospitality at an election is a lesser vice; it is difficult to defend today.

Impersonation, or personation at an election

Section 172, replacing section 171D, defines it. A person commits personation who, at an election, 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 protects a person lawfully authorised to vote as a proxy so far as he votes as proxy.

Three distinct acts are covered, and each earns marks. The first is the bogus voter. The second, repeat voting in one's own name, is the limb most often omitted, and it is what indelible ink is designed to defeat. The third makes the organiser liable, which matters because personation is never an individual enterprise at scale.

Section 174, replacing section 171F, punishes personation with imprisonment which may extend to one year, or with fine, or with both.

Sub-section (3) is the saving: a declaration of public policy, a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, is not interference. That protects the ordinary campaign, the newspaper editorial and the trade union resolution.

Section 174, replacing section 171F, punishes undue influence with the same one year or fine or both.

Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17, is the leading case on the divine displeasure limb. Speeches made at an election had appealed to religion and threatened voters with religious consequences. The Supreme Court held that such appeals interfere with the free exercise of the electoral right and that the secular character of the electoral process must be preserved. That reasoning was carried further in Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629, where a seven judge Bench held 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.

Conclusion. Gratification is not an offence but the currency of one: anything satisfying a want, extended by three deeming provisions to offers, attempts and unperformed promises, and cut back by the saving for a declaration of public policy. Bribery under section 170, punished by section 173, catches both the giver and the taker with one year or fine, and only fine where it takes the form of treating. Personation under section 172, punished by section 174, covers voting as another whether living, dead or fictitious, voting twice in one's own name, and procuring either. Undue influence under section 171, punished by the same section 174, covers any voluntary interference with the free exercise of an electoral right, including threats of injury and of divine displeasure. All four consequences are more serious under the Representation of the People Act, 1951 than under the Penal Code, which is the strongest criticism of the chapter.

Reform one: a statutory sentencing framework

The proposal. Enact a chapter of sentencing principles: the purposes of sentencing, a list of aggravating and mitigating factors, a requirement that a court record reasons for the sentence it imposes, and a graded relationship between harm and term. Establish a permanent sentencing commission or council to issue guidelines.

The reason. The Code prescribes maxima and almost no minima and supplies no principles at all. The result is that a single provision could run from a fine to imprisonment for life without any statutory guidance, which is exactly what section 124A did. The Malimath Committee in 2003 and the Madhava Menon Committee in 2007 both recommended a sentencing policy, and neither was acted upon. Even on the death penalty, the guidance is judicial rather than statutory: Bachan Singh v. State of Punjab, (1980) 2 SCC 684, upheld the death penalty by a Constitution Bench but confined it to the rarest of rare cases, and Machhi Singh v. State of Punjab, (1983) 3 SCC 470, then attempted to systematise that test. A doctrine of that importance should be in the statute.

The reason. The exception rests on a presumption of irrevocable consent which no modern legal system accepts. The Justice J.S. Verma Committee recommended its removal in January 2013 and the Criminal Law (Amendment) Act, 2013 did not remove it. Meanwhile the Supreme Court in Independent Thought v. Union of India, (2017) 10 SCC 800, read the exception down so that it does not apply where the wife is below eighteen, holding that a contrary reading would be arbitrary and would conflict with the Protection of Children from Sexual Offences Act, 2012. A partial judicial correction of a provision Parliament will not touch is the weakest possible position for a penal code.

Reform four: a general provision on corporate criminal liability

The proposal. Insert a general provision attributing liability to a body corporate for offences committed by its directing mind or in the course of its business, with a scheme of corporate penalties and a due diligence defence.

Reform six: a general provision on mens rea

The proposal. Insert a general rule that, unless the contrary intention appears, an offence requires knowledge or intention as to each element of the actus reus, with strict liability confined to expressly designated regulatory offences.

The reason. The Code uses at least six different mental element terms, dishonestly, fraudulently, voluntarily, knowingly, intentionally and maliciously, defined in different places or not at all, and the courts have had to supply the presumption of mens rea themselves. That is workable but it produces inconsistency across chapters.

Reform seven: modernise and delete obsolete offences

The proposal. Delete offences that no longer describe any social harm or that the Constitution has overtaken, and revise the fines fixed in 1860.

• Section 111 creates a general offence of organised crime, and section 112 of petty organised crime, closing the gap that had forced States to enact laws such as the Maharashtra Control of Organised Crime Act, 1999.
• Section 113 brings the terrorist act into the ordinary penal law.
• Sections 377 and 497 are not reproduced, giving statutory effect to Navtej Singh Johar and Joseph Shine.
• Fines fixed in 1860 have been raised across the Code, for example from two hundred rupees to one thousand for a public nuisance under section 292, and from one thousand to five thousand for adulteration of drugs under section 276.
• Chapter V gathers the offences against women and children in one place, and section 69 creates an offence of sexual intercourse by employing deceitful means.

One, a statutory rule for the transition between codes. The Bharatiya Nyaya Sanhita, 2023 repealed the Indian Penal Code by section 358 and saved the previous operation of the repealed Code, and section 6 of the General Clauses Act, 1897 supplies the general saving. But nothing in the Sanhita supplies a concordance with statutory force. The consequence is that every special statute which refers to a section of the Penal Code, and there are hundreds, must now be read through section 8 of the General Clauses Act, which construes a reference to a repealed enactment as a reference to the corresponding provision of the re-enacted one.

That works where the correspondence is exact and it does not work where it is not. The Maharashtra Control of Organised Crime Act, 1999 refers throughout to "the Code", meaning the Code of Criminal Procedure, 1973, and to sections 82 to 85, 107, 110, 167, 260, 262 and 438 of it; the Juvenile Justice (Care and Protection of Children) Act, 2015 refers to the Indian Penal Code in sections 2(33), 2(45), 2(54) and 21. Every one of those references now requires an act of construction. A schedule of correspondences enacted with the Sanhita would have cost nothing and removed a decade of avoidable litigation.

Conclusion. The reforms the Code most needed were a statutory sentencing framework, a redrafted offence against the State carrying an express incitement requirement, removal of the marital rape exception, general provisions on corporate liability and mens rea, victim restitution as a sentencing option, and the deletion of obsolete offences with a revision of 1860 fines. The Bharatiya Nyaya Sanhita, 2023 has delivered community service, organised crime, terrorism, the removal of sections 377 and 497 and a general revision of fines. It has not delivered a sentencing policy, corporate liability, mens rea or the marital rape reform, and on the offence against the State it has moved in the opposite direction, which is why the reform argument survives the recodification.

Protection of witnesses, section 19

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 general rule in section 327 of the Code, 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 at the discretion of the court alone.

Keeping the witness anonymous, section 19(2). A Special Court may, on the application of a witness in any proceeding before it, or of 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 is important, because a frightened witness will often not apply.

The measures, section 19(3). Without prejudice to the generality of sub-section (2), the measures may include:

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 framed by the Union Government and directed that it be treated as the law under Article 141 and 142 until Parliament legislates, providing for three categories of threat, a Witness Protection Cell in every district and identity protection measures. Section 19 of MCOCA is therefore no longer exceptional; it is the earliest Indian statutory model of what has become a general scheme.

Two related provisions complete the protection. Section 18 makes a confession before an officer not below Superintendent of Police admissible, which reduces the prosecution's dependence on civilian witnesses in the first place. Section 22 raises presumptions where unlawful arms or fingerprints are proved, which does the same.

Forfeiture and attachment of property, section 20

Section 20 operates in three distinct situations and an answer that runs them together loses marks.

Against an absconder, section 20(3). This limb is the most detailed. On a report in writing made by the investigating police officer with the approval of the supervisory officer referred to in section 14(1), where the Special Court has reason to believe that a person who has committed an offence under the Act has absconded or is concealing himself so that he may not be apprehended, the Court may, notwithstanding section 82 of the Code, publish a written proclamation requiring him to appear at a specified place and time not less than fifteen days and not more than thirty days from publication. A proviso requires the investigating officer, if he fails to arrest the absconder within three months of registering the offence, to report to the Special Court on the expiry of that period.

The related provisions. Section 4 punishes a person who, on behalf of a member of an organised crime syndicate, is or has been in possession of movable or immovable property which he cannot satisfactorily account for, with three to ten years and a minimum fine of one lakh rupees, and provides that such property is also liable to attachment and forfeiture as provided by section 20. Section 3(5) punishes holding property derived from an organised crime with three years to life and a minimum fine of two lakh. Section 17(2) supplies the evidential engine: where it is proved that a person involved in organised crime, or a person on his behalf, is or has been in possession of property he cannot satisfactorily account for, the Special Court shall presume, unless the contrary is proved, that the property was acquired or derived from his illegal activities.

Read together, sections 4, 17(2) and 20 reverse the burden on property. The prosecution must prove possession and the syndicate connection; the accused must then account for the property or lose it.

Conclusion. Section 19 protects the witness by permitting in camera proceedings, allowing the Special Court on its own motion to keep identity and address secret, to sit where it chooses, to omit names from its records and to prohibit publication, with a penalty for contravention that is far too small at one year and one thousand rupees. Section 20 attacks the syndicate's money in three ways, forfeiture on conviction free from encumbrances, attachment during the trial with forfeiture following conviction, and proclamation and attachment against an absconder with restoration within six months if he proves he did not abscond, reinforced by section 4, section 3(5) and the presumption in section 17(2). Between them they answer the two reasons an organised crime prosecution ordinarily fails: the witness who will not come and the enterprise that survives the conviction.

The two named offences

Personation, section 172 of the Bharatiya Nyaya Sanhita, 2023, formerly section 171D of the Indian Penal Code. A person commits personation at an election 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. Three acts are therefore covered: voting as another, voting twice, and organising either.

Bribery, section 170, formerly section 171B. A person commits bribery who gives a gratification with the object of inducing any person to exercise an electoral right or of rewarding him for having exercised it, or who accepts a gratification as such a reward or for inducing another to exercise the right. Offers, agreements and attempts are deemed to be giving or accepting, and acceptance as a motive for what the taker does not intend to do is deemed acceptance as a reward. A declaration of public policy or a promise of public action is expressly excluded.

False statement in connection with an election, section 175, formerly 171G. Whoever, with intent to affect the result of an election, makes or publishes any 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, shall be punished with fine. Two limits are important: the statement must be one of fact and not of opinion, and it must concern the candidate's personal character or conduct and not his public or political conduct, so that ordinary political attack falls outside the section.

Section 169, formerly 171A, supplies the two definitions the whole chapter uses: a candidate is a person nominated as a candidate at any election, and an electoral right is the right to stand, not to stand, to withdraw, to vote or to refrain from voting.

What actually happens to the election

The criminal offence is only half the story, and the more serious half is electoral.

Section 123 of the Representation of the People Act, 1951 defines corrupt practices, which include bribery in section 123(1), undue influence in section 123(2), an appeal on the ground of religion, race, caste, community or language in section 123(3), publication of a false statement of fact about a candidate's personal character in section 123(4), hiring of vehicles in section 123(5), incurring expenditure in excess of the prescribed limit in section 123(6), and obtaining the assistance of Government servants in section 123(7).

S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659, marks the outer edge of bribery. Free televisions, mixers and grinders promised in an election manifesto were challenged as bribery and as a corrupt practice. The Supreme Court held that a promise in a manifesto is not a corrupt practice by the candidate, because the manifesto is issued by the party and because it falls within the saving for a declaration of public policy, while recording that the practice shakes the root of free and fair elections and directing the Election Commission to frame guidelines on manifestos.

Anukul Chandra Pradhan v. Union of India, (1997) 6 SCC 1, explains why the chapter exists at all. Upholding section 62(5) of the Representation of the People Act, 1951, which bars a person in prison or in police custody from voting, the Supreme Court held that the right to vote is a statutory right subject to the conditions the statute imposes and that keeping persons with a criminal background out of the electoral process is a legitimate legislative object.

Who actually enforces it

In practice the criminal provisions are hardly used and the enforcement is administrative.

The ten rupee proviso in section 176 is a museum piece and should be revised or deleted, as should the fine only rule for treating.

Enforcement is displaced from the courts to the Commission. That is efficient in the short term and unsatisfactory in principle, because the Model Code of Conduct has no statutory force and its sanctions are reputational. Giving the Model Code statutory backing has been recommended repeatedly and not enacted.

For full marks, cover: three limbs. Give the salient features as a numbered list of ten, which is quick to write and easy to mark. Then take digital signature in depth, because the examiner has asked for detail and because the technical mechanism is what separates a good answer. Then take the offences grouped by severity rather than by number, and end with the two provisions that are no longer there, which shows currency.

A note on the wording. The paper prints "Discuss III details", which is the setter's slip for "in details". Nothing turns on it.

The salient features

The Information Technology Act, 2000, Act 21 of 2000, received assent on 9 June 2000 and was brought into force on 17 October 2000. Its preamble traces it to United Nations General Assembly resolution A/RES/51/162 of 30 January 1997 adopting the UNCITRAL Model Law on Electronic Commerce.

Five, a regulator. Chapter VI, sections 17 to 34, appoints the Controller of Certifying Authorities, whose functions under section 18 include supervising Certifying Authorities, certifying their public keys, laying down standards and maintaining a public database of their disclosure records, and gives powers of investigation under section 28 and access to computers and data under section 29.

Six, certificates and subscribers. Chapter VII governs the issue, suspension and revocation of electronic signature certificates; Chapter VIII the duties of subscribers, including the duty in section 42 to keep the private key confidential.

Seven, civil liability and adjudication. Section 43 gives compensation for unauthorised access, damage, contamination, disruption or denial of service; section 43A compensation against a body corporate negligent with sensitive personal data; section 46 appoints an adjudicating officer with jurisdiction up to a claim of five crore rupees.

The requirement. Section 3(2) provides that the authentication shall be effected by the use of an asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record. The Explanation defines a hash function as an algorithm mapping or translating one sequence of bits into another, generally smaller, set known as the hash result, such that the same record always yields the same hash result, and such that it is computationally infeasible to reconstruct the original record from the hash result and computationally infeasible that two records should produce the same hash result.

Section 3(3) provides that any person may verify the record by use of the public key of the subscriber. Section 3(4) provides that the private key and the public key are unique to the subscriber and constitute a functioning key pair.

The certificate chain. The public key is meaningless unless a stranger can trust that it belongs to the person named. That is the function of Chapter VI and Chapter VII: the Controller licenses Certifying Authorities under section 21, and a licensed Certifying Authority issues an Electronic Signature Certificate under section 35 after satisfying itself of the applicant's identity and of his possession of the private key corresponding to the public key to be listed. Sections 36 to 39 govern the representations made on issue, and the suspension, revocation and notice of revocation of a certificate. Section 42 places the correlative duty on the subscriber to keep the private key confidential and to inform the Certifying Authority without delay if it is compromised.

The secure signature. Section 15 provides that an electronic signature is a secure electronic signature if the signature creation data, at the time of affixing the signature, was under the exclusive control of the signatory and of no other person, and was stored and affixed in such exclusive manner as may be prescribed. The Explanation provides that in the case of a digital signature the signature creation data means the private key of the subscriber. A secure signature is what attracts the evidentiary presumption, formerly section 85B of the Indian Evidence Act, 1872 and now section 86 of the Bharatiya Sakshya Adhiniyam, 2023.

Legal recognition in the courts. Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, is the reminder that recognition of the signature does not answer the separate question of admissibility of the record. The Supreme Court held that an electronic record produced as secondary evidence is inadmissible without the certificate then required by section 65B(4) of the Evidence Act, that oral evidence cannot cure its absence, and it overruled the contrary observations in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, confirmed that the certificate is a mandatory condition precedent, overruled Shafhi Mohammad v. State of Himachal Pradesh, (2018) 2 SCC 801, and held that a court may summon the certificate where the device is in the control of a person who will not produce it. The requirement now sits in section 63 of the Bharatiya Sakshya Adhiniyam, 2023.

Up to three years. Section 65, tampering with computer source code required by law to be kept, three years or fine up to two lakh. Section 66, any act referred to in section 43 done dishonestly or fraudulently, three years or fine up to five lakh. Section 66B, dishonestly receiving a stolen computer resource. Section 66C, identity theft by fraudulent use of the electronic signature, password or other unique identification feature of another, three years and fine up to one lakh. Section 66D, cheating by personation using a computer resource. Section 66E, capturing, publishing or transmitting the image of a private area without consent.

Up to two years. Section 71, misrepresentation to the Controller or a Certifying Authority; section 73, publishing an electronic signature certificate false in material particulars; section 74, creating or publishing such a certificate for a fraudulent purpose. These three protect the signature scheme described above and are the reason the two limbs of this question belong together.

Procedure. Section 77B makes offences 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; section 84B and 84C punish abetment and attempt.

Conclusion. The salient features of the Act are legal recognition of electronic records and signatures, electronic governance, rules of attribution, a secure records regime, a Controller and licensed Certifying Authorities, civil compensation with an adjudicating officer up to five crore rupees, an appellate structure, a chapter of offences reaching imprisonment for life, extra-territorial reach under section 75 and an overriding effect under section 81.

The digital signature under section 3 is the device on which the first feature rests, delivering authentication and integrity together through an asymmetric key pair and a hash function, supported by the certificate chain in Chapters VI and VII and widened into a technology neutral electronic signature by section 3A in 2009. The offences in Chapter XI exist to protect that chain and the systems it runs on, and two of them, section 66A and the imprisonment limbs of sections 72 and 72A, have been removed from the statute book since this paper was set.

Section 292(2), now section 294(2), punishes selling, letting to hire, distributing, publicly exhibiting or otherwise 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.

Section 293, now section 295, punishes the same conduct towards a child more severely; 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 to the annoyance of others.

Two features of the definition control every decided case. The test is one of effect and not of subject matter, so obscenity is not the same as indecency, vulgarity or the depiction of sex. And the effect is judged on the material taken as a whole, which forbids the prosecution from isolating a passage.

A short story: Chandrakant Kalyandas Kakodkar v. State of Maharashtra, (1969) 2 SCC 687. The author of a Marathi short story published in a magazine was convicted of obscenity. The Supreme Court set the conviction aside. It held that the concept of obscenity changes with the passage of time and with what a society at a given time regards as decent, that the book must be judged as a whole and the offending passages in the context of the whole work, and that the standard is that of the ordinary person of common sense and prudence rather than of a hypersensitive one. It also warned against judging a work solely by its likely effect on adolescents, since that would reduce all literature to what is fit for a child.

Illustrates: the whole work rule and the ordinary reader standard.

A photograph: Aveek Sarkar v. State of West Bengal, (2014) 4 SCC 257, decided on 3 February 2014. A Calcutta weekly reproduced a photograph, first published in a German magazine, of the tennis player Boris Becker with his fiancée Barbara Feltus, both partly nude, taken by her father and published with an interview in which the couple protested against apartheid and racial discrimination. A complaint under section 292 followed. The Supreme Court quashed the proceedings 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. In its place it adopted the contemporary community standards test: the question is whether a reasonable person, applying contemporary 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. The message against racism was decisive.

Illustrates: the current test, and the decisive weight of message and context.

A television broadcast: Director General, Directorate General of Doordarshan v. Anand Patwardhan, (2006) 8 SCC 433. Doordarshan refused to telecast a documentary on communal violence on the ground that some scenes were objectionable. The Supreme Court directed the telecast, holding that a film must be judged from the point of view of the average, strong minded, firm and courageous person and not from that of a weak or vacillating one, and that the State broadcaster cannot refuse to carry a film which the Board has certified merely because parts of it are uncomfortable.

Illustrates: the standard of the strong minded viewer, and that certification binds the broadcaster.

Words rather than images: S. Khushboo v. Kanniammal, (2010) 5 SCC 600. An actress had given an interview expressing views on pre-marital sex, and a very large number of complaints followed, including under section 292. The Supreme Court quashed all of them, holding that an expression of opinion on a moral question is not obscene, that morality and criminality are not co-extensive, and that the invocation of the criminal process against unpopular speech is an abuse.

Illustrates: that opinion is not obscenity, and the misuse of the section against speech.

Limb (b) exempts any representation sculptured, engraved, painted or otherwise represented on or in (i) any ancient monument within the meaning of 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 any religious purpose.

The difference between them is examinable. Limb (b) is a categorical exclusion requiring no justification, which is why the erotic sculpture at Khajuraho and Konark is outside the section altogether. Limb (a)(i) is a defence which must be proved, and the burden is on the person claiming it, which is why an accused publisher must lead evidence of literary, artistic or scientific merit.

Conclusion. Obscenity under the Penal Code, now section 294 of the Sanhita, is material which is lascivious, appeals to the prurient interest, or taken as a whole tends to deprave and corrupt those likely to encounter it. The test has moved decisively: Ranjit Udeshi applied Hicklin in 1965, Kakodkar and Samaresh Bose softened it by insisting on the whole work, the ordinary reader and the author's viewpoint, and Aveek Sarkar discarded Hicklin in 2014 for contemporary community standards judged on message and context.