The Legislature, Lawmaking, and the Decision to Criminalise

In a constitutional democracy, the power to declare that a given act is a crime sits with the legislature, not with judges, the police, or the executive acting alone.

This follows directly from the principle of legality, expressed in the Latin maxim nullum crimen sine lege, nulla poena sine lege: there is no crime and no punishment without a pre-existing law.

A person cannot be punished for conduct that was not defined as criminal at the time they did it. India's Constitution enshrines this directly in Article 20(1), which bars conviction for an act that was not an offence under the law in force when it was committed, and bars a penalty greater than the one that existed at that time.

This constraint is what separates a rule-of-law criminal justice system from arbitrary rule. If courts or officials could freely decide, after the fact, that some conduct deserved punishment, citizens would have no way to plan their conduct around a known set of rules.

Parliament in India legislates criminal law primarily under the Concurrent List of the Seventh Schedule, meaning both Union and State legislatures can enact criminal statutes on many subjects, subject to constitutional limits.

In the United Kingdom, Parliament is the supreme lawmaking body and can in principle create or abolish any offence by statute, while the devolved legislatures in Scotland and Northern Ireland hold their own criminal lawmaking powers within devolved competence. In the United States, Congress and the fifty state legislatures each define criminal offences within their own jurisdiction, and the void-for-vagueness doctrine under the Due Process Clause polices statutes that fail to give fair notice of what is prohibited.

Courts still play an essential role, but it is interpretive rather than originating. Judges decide whether a defendant's conduct falls within a statute's wording, resolve ambiguity, and test statutes against constitutional guarantees, including striking down or reading down a provision that a legislature enacted.

What courts do not ordinarily do is invent a wholly new criminal offence that no statute or settled precedent already recognised. England once permitted judges more latitude here through historical common-law offences, and a residual judicial power to recognise a new common-law crime was still asserted as late as the 1960s, but this has narrowed sharply as criminal law has been progressively codified and as courts have grown wary of retroactively punishing conduct nobody could have known was criminal.

Because criminalising conduct is a serious use of state power, over the last century and a half legal philosophers have tried to state what actually justifies drawing a line around a criminal offence.

Four principles recur in this debate. The harm principle, most closely associated with John Stuart Mill's 1859 essay On Liberty, holds that the only legitimate reason for the state to interfere with a person's liberty is to prevent harm to other people; harm to oneself, or mere offence to others' sensibilities, is not enough on its own. This principle underlies most core offences against the person and property found in every modern penal code.

Legal moralism takes a different view. Lord Patrick Devlin argued, in his 1959 Maccabaean Lecture later published as The Enforcement of Morals (1965), that a shared public morality is part of the glue that holds a society together, and that the law may legitimately punish conduct that seriously offends that shared morality even where no identifiable victim is harmed.

Devlin developed this position while responding to the 1957 Wolfenden Report, which had recommended decriminalising private consensual homosexual acts between adults and had argued that private morality was not the law's business. H. L. A. Hart replied to Devlin in Law, Liberty and Morality (1963), defending a version of the harm principle and warning that legal moralism gives the state an unbounded licence to punish unpopular but harmless conduct.

Legal paternalism justifies criminalisation to protect a person from themselves, for instance mandatory seatbelt or helmet laws, and the offence principle, developed at length by Joel Feinberg across his four-volume The Moral Limits of the Criminal Law (1984 to 1988), justifies criminalising conduct that causes serious offence, disgust, or affront to others in public, such as public indecency, even where no tangible harm occurs.

Feinberg treated the offence principle as a narrower, more cautious supplement to the harm principle rather than a licence for moralism at large. Most working penal codes are not built on a single one of these principles; the same code typically mixes harm-based offences, a few paternalist ones, and a handful that rest on the offence principle, with legal moralism playing the smallest and most contested role in liberal democracies today.

These principles matter because they set the terms of legislative debate whenever a new offence is proposed. A bill to criminalise a fresh category of conduct is regularly defended in exactly this vocabulary, whether the harm is concrete, the conduct merely offends prevailing sentiment, or the target is the person's own choices, and the answer given usually decides whether a liberal democracy treats the resulting law as legitimate.

There are two broad ways a jurisdiction can build up its criminal law. The first is codification: drafting a single, systematic penal code in advance that states offences, defences, and general principles of liability together.

India's Indian Penal Code, drafted primarily by Thomas Babington Macaulay's Law Commission and enacted in 1860, was one of the earliest large-scale criminal codes in the common-law world, and it organised offences by chapter, defined general exceptions and the mental-fault standard for each offence, and was later carried into Pakistan, Bangladesh, and several other jurisdictions that inherited British colonial law.

India replaced this code with the Bharatiya Nyaya Sanhita, enacted in 2023, which restructured and renumbered many of the same substantive offences while retaining the codified structure. The classification of offences that a code sets out, for example which offences are treated as cognizable or bailable, is itself part of this codified architecture, discussed further in

classification of offences: cognizable, bailable, and compoundable.

The second method is common-law incrementalism, historically the English approach: criminal offences accumulated case by case as judges decided disputes, and a body of judge-recognised crimes such as murder built up over centuries before Parliament began systematically restating and supplementing them by statute.

England and Wales has never adopted a single comprehensive penal code; instead, a mix of surviving common-law offences and a large, uncoordinated body of statutes covers the field, and repeated law-reform efforts, including a long-running Law Commission project, have proposed codification without it being enacted in full.

The United States sits between the two models. Federal criminal law is scattered across Title 18 of the United States Code and numerous other titles rather than organised as a single code, while most individual states adopted structured penal codes during the twentieth century, heavily influenced by the Model Penal Code, a model statute drafted by the American Law Institute and published in 1962.

The Model Penal Code was never itself binding law; it was a template that state legislatures could adapt, and it did enormous work in standardising concepts such as the levels of criminal intent (purposely, knowingly, recklessly, negligently) across jurisdictions that had previously used inconsistent common-law language for the same idea.

Codification carries real advantages: it makes the law more accessible, more internally consistent, and easier to amend as a whole. Its cost is rigidity, since a codified provision can lag behind new forms of harmful conduct until the legislature acts again, whereas a common-law system can in theory adapt case by case, though at the price of the fair-notice concerns already discussed.

A criminal statute rarely begins on the floor of a legislature. Most jurisdictions route criminal-law reform through a specialist body first: India's Law Commission, a non-statutory advisory body reconstituted periodically by the government, studies a subject, invites public and stakeholder comment, and publishes a report recommending specific statutory language; England and Wales relies on the Law Commission of England and Wales for the same function under its own statutory mandate.

These recommendations are advisory, and a government is free to accept, modify, or ignore them, but they set much of the technical drafting agenda that eventually reaches the legislature.

Once a government or a private member decides to proceed, the bill is introduced in the legislature and typically referred to a committee for detailed scrutiny before it reaches a full vote.

In India's Parliament, a bill dealing with criminal law is commonly examined by the Department-Related Parliamentary Standing Committee on Home Affairs, which can hear expert testimony, invite public submissions, and recommend amendments before the bill returns to the floor.

The three statutes that replaced India's colonial-era Penal Code, Code of Criminal Procedure, and Evidence Act, namely the Bharatiya Nyaya Sanhita, the Bharatiya Nagarik Suraksha Sanhita, and the Bharatiya Sakshya Adhiniyam, went through this committee process, were passed by Parliament in December 2023, and came into force on 1 July 2024.

In the United Kingdom, a government bill usually proceeds through a first reading, second reading debate, committee stage, report stage, and third reading in each House, with some bills first published in draft for pre-legislative scrutiny by a select or joint committee.

In the United States, a criminal bill introduced in Congress is referred to a committee, most often the Judiciary Committee, which can hold hearings, mark up the text clause by clause, and either report it favourably to the floor or let it lapse; an equivalent committee process operates in each state legislature for state criminal codes.

Public consultation, whether through published draft bills, parliamentary committee hearings open to submissions, or notice-and-comment procedures for regulatory offences, is meant to surface objections, drafting errors, and unintended breadth before the law takes effect, though the amount of real scrutiny a criminal bill receives varies enormously depending on how politically urgent the government treats it.

Enactment is rarely the end of the story. Criminal statutes are amended repeatedly, sometimes within a few years of passage, to close loopholes exposed by prosecutions, respond to appellate court rulings that narrowed a provision, or extend the law to new technology, and each amendment cycle repeats a compressed version of the same drafting-to-enactment sequence.

Not every criminal statute follows the deliberate, committee-vetted path described above. Sociologist Stanley Cohen, in Folk Devils and Moral Panics (1972), studied how British media coverage of clashes between mods and rockers at English seaside resorts in 1964 turned a minor public-order problem into a national symbol of moral decline, and coined the term moral panic for the resulting cycle of exaggerated alarm, media amplification, and demand for tougher law.

A moral panic does not by itself create a statute, but it can compress the ordinary legislative timeline dramatically and reduce the room for the kind of committee scrutiny described in the previous section.

A frequently cited example is the United Kingdom's Dangerous Dogs Act 1991, passed within weeks of a wave of tabloid coverage of dog attacks, which banned ownership of specific breeds outright; the Act was widely criticised afterward, including by some of the officials who had to enforce it, for being drafted too quickly to distinguish dangerous individual animals from an entire breed.

Legislatures under similar pressure have moved quickly on other subjects too. Interest-group pressure operates alongside, and sometimes instead of, public panic: organised lobbies, whether industry associations seeking narrower regulatory offences or advocacy groups pushing for new protective ones, routinely shape a bill's final wording during the committee stage, sometimes far more than public opinion does.

Victimless or morally contested conduct, from gambling to recreational drug use to consensual adult sexual conduct, is where this dynamic shows up most clearly, because legislative attitudes toward such conduct tend to track shifting public sentiment more closely than they track a stable harm-based justification, a pattern explored further in victimless crime and moral regulation.

A legislature that expands the criminal law in response to a moral panic can find the resulting statute difficult to unwind later even after the panic recedes, since repealing a criminal offence is politically read as a signal of leniency, which raises the same interest-group dynamics in reverse.

This asymmetry, easier to add an offence than to remove one, is a structural reason why the size of a jurisdiction's criminal code tends to grow over time, a pressure that also intersects with corruption and abuse of public power when lobbying for or against a bill crosses into improper influence.

The cumulative effect of the pressures already described, incremental codification, moral panics, and organised lobbying, is a long-run tendency toward overcriminalisation: legislatures add offences far more often than they remove them, and a substantial share of new offences are minor regulatory ones created outside the core penal code altogether.

Legal scholars in the United States have documented this expansion of the federal criminal code across decades of scattered legislation, arguing it has grown too large for prosecutors, let alone citizens, to track in full.

Decriminalisation runs the opposite direction and is politically harder to achieve, but it does happen: Portugal decriminalised personal possession of drugs for private use under Law 30/2000, redirecting minor cases to administrative panels rather than criminal courts, and in India the Mental Healthcare Act, 2017 changed the treatment of attempted suicide, directing that a person who attempts suicide is presumed to have been under severe stress and, unless the presumption is rebutted, should not be tried and punished under the corresponding penal provision. Debates over the right boundary for the criminal law, including these cases, connect directly to crime, deviance, and the limits of criminalisation.

International instruments also shape domestic criminalisation, without themselves creating an offence directly enforceable in domestic courts. The United Nations Convention against Transnational Organized Crime (2000), often called the Palermo Convention, and its supplementing protocols obliged ratifying states, including India, the United Kingdom, and the United States, to criminalise specific conduct such as human trafficking and participation in an organised criminal group in their own domestic law, and the United Nations Convention against Corruption (2003) did the same for a range of corrupt practices.

Model codes travel similarly: the Model Penal Code's influence on American state codes, discussed earlier, is one example, and comparative law commissions regularly study each other's statutes and law-reform reports before recommending domestic reform, which is why criminal codes drafted a century apart on different continents still show recognisable family resemblances in structure.

Finally, it is worth being precise about which branch actually shapes criminal law day to day. The legislature enacts the text, but the judiciary can narrow, widen, or in effect suspend a provision's application through constitutional review, and the executive, through prosecutors, police, and enforcement agencies, decides which of the many offences on the books are actually pursued.

India's Supreme Court in Navtej Singh Johar v. Union of India (2018) read down Section 377 of the Indian Penal Code so that it no longer criminalised consensual sexual conduct between adults, without Parliament itself repealing or amending the provision at that time; the legislature had been silent, and the judiciary filled the gap through constitutional interpretation.

In parliamentary systems, the executive can also legislate temporarily through an ordinance-making power, subject to later ratification by the legislature, which briefly places lawmaking authority in the executive's hands. The formal legislative process is therefore only the starting point; enforcement discretion and judicial review together determine how a statute actually operates in practice.