The Role of Legislature in Shaping Criminal Accountability

Every time a court convicts a person for a crime, or a police officer files a charge sheet, or a judge decides what punishment fits an offence – all of it ultimately traces back to one source: the legislature. In India’s criminal justice system, Parliament and state legislatures are not just law-making bodies; they are the architects of accountability itself. Without a legislature that defines what constitutes a crime and prescribes consequences for it, the entire machinery of courts, police, and prosecution would have nothing to enforce. Understanding the legislature’s role in criminal law is therefore foundational to understanding how criminal accountability works in practice.

What does the legislature do in criminal law? 🔗

At its most basic, the legislature’s job is to convert society’s collective values and interests into binding legal rules. In criminal law, this means deciding which acts are harmful enough to be labelled “crimes,” what punishment those crimes carry, and how the state should go about prosecuting offenders. These decisions are not arbitrary – they are driven by constitutional mandates, public welfare considerations, evolving social norms, and the need to deter harmful conduct.

The legislature performs this function through two distinct types of law. Substantive criminal law defines offences and their punishments – it answers the question, “what is a crime?” Procedural criminal law, on the other hand, governs how the state investigates, prosecutes, and tries those accused of crimes – it answers the question, “how does the justice system respond?” Both types are the product of legislative action, and both are necessary for a functioning criminal justice system.

Constitutional foundation: who can make criminal laws? 🔗

In India’s federal structure, legislative power over criminal matters is shared between Parliament and state legislatures. This is governed by the Seventh Schedule of the Constitution, which divides subjects into three lists – the Union List (Parliament only), the State List (states only), and the Concurrent List (both Parliament and states).

Critically, criminal law and criminal procedure both fall under the Concurrent List – specifically Entries 1 and 2 of List III under Article 246(2) of the Constitution. This means both Parliament and state legislatures have the competence to enact criminal legislation. However, in cases of conflict between a central law and a state law on a concurrent subject, the central law prevails under Article 254, unless the state law has received Presidential assent. This arrangement ensures national uniformity in core criminal standards while allowing states to address local conditions.

Police and prisons, however, fall under the State List, meaning state governments exercise exclusive control over law enforcement infrastructure. This division of powers means that while Parliament sets the rules of crime and procedure, the states are largely responsible for implementing them on the ground.

The Indian Penal Code: legislature defining criminal behaviour 🔗

The most significant exercise of legislative power in Indian criminal law has historically been the Indian Penal Code, 1860 (IPC). Drafted by Thomas Babington Macaulay as chairman of the First Law Commission under the Charter Act of 1833, the IPC served as the primary substantive criminal law in India – defining offences ranging from theft, fraud, and assault to murder, sedition, and crimes against the state.

The IPC was a classic legislative instrument: it set out, in clear terms, which acts were criminal, what the state of mind (mens rea) required was, and what punishment – from fines to death – each offence attracted. Its reach extended to all citizens of India and even to acts committed abroad that are triable within India. By codifying criminal liability, the legislature gave citizens and courts a single, authoritative reference point for what conduct society will not tolerate.

What made the IPC significant beyond its technical provisions was what it represented: a legislative commitment to equal application of the law. Every person within India’s territory, regardless of status, was subject to the same penal code. This principle of equal accountability before the law is a cornerstone of criminal justice, and it was the legislature – not courts, not the executive – that embedded it into the system.

The Code of Criminal Procedure: legislature shaping the process of justice 🔗

Defining crimes is only half the legislative task. The other half is ensuring that the process of bringing offenders to justice is fair, systematic, and accountable. This is where the Code of Criminal Procedure, 1973 (CrPC) came in. Enacted by Parliament and effective from April 1, 1974, the CrPC laid down the procedural framework that governs how police investigate crimes, how courts try accused persons, and what rights the accused and victims hold throughout the process.

The CrPC classified offences into categories that determined how the state could respond. Cognizable offences – like murder and rape – allowed police to arrest without a warrant and investigate independently. Non-cognizable offences – like cheating or defamation – required police to obtain prior court permission before proceeding. This classification was itself a legislative choice: Parliament decided, through the CrPC, how much police power to authorize based on the gravity of the offence.

The CrPC also established the hierarchy of criminal courts – from Executive Magistrates to Sessions Courts – and spelled out which court had jurisdiction over which offences. It created the mechanism for bail, the process for framing charges, the rules for recording evidence, and the procedure for appeals. By doing all this, the legislature ensured that criminal accountability is not just about punishing offenders, but about doing so through a process that protects individual rights and promotes transparency.

Special legislation: the legislature responding to new threats 🔗

The IPC and CrPC were never meant to be the only criminal laws – they formed the general framework. Parliament has also enacted numerous special criminal statutes to address threats that general law could not fully capture. Laws like the Unlawful Activities (Prevention) Act, 1967 target terrorism and organized unlawful activities. The Protection of Children from Sexual Offences Act, 2012 (POCSO) provides a dedicated framework for offences against children, with stricter procedural safeguards and higher punishments. The Prevention of Corruption Act, 1988 specifically targets bribery and misconduct by public servants.

Each of these is a clear example of the legislature responding to a specific social problem by creating targeted legal accountability. Over the years, special laws have also been enacted to penalise specific categories of offences and provide separate procedures for their prosecution – reflecting the legislature’s ongoing responsibility to adapt the law to society’s changing realities.

The 2023 reforms: legislature overhauling the criminal justice system 🔗

The most dramatic recent exercise of legislative power in Indian criminal law came in December 2023, when Parliament passed three landmark statutes that replaced the entire foundational framework. The Bharatiya Nyaya Sanhita (BNS), 2023, the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and the Bharatiya Sakshya Adhiniyam (BSA), 2023 replaced the IPC, CrPC, and Indian Evidence Act respectively, coming into force on July 1, 2024.

This was not incremental amendment – it was a structural overhaul. The BNS reduced the IPC’s 511 sections to 358, introduced new offences like organized crime and mob lynching as distinct criminal acts, added community service as a form of punishment, and formally recognized transgender as a gender for the purposes of the law. The BNSS introduced mandatory forensic investigations for serious crimes, time limits for trials, zero FIR (the ability to file a complaint at any police station regardless of jurisdiction), and provisions for conducting trials in absentia against fugitives.

The BSA modernized the law of evidence to account for digital reality, making electronic records such as emails, GPS data, and chat messages formally admissible as primary evidence. These reforms were preceded by four years of consultation involving 18 states, 6 Union Territories, 16 High Courts, 22 law universities, and over 140 Members of Parliament – illustrating that the legislative process in criminal law is neither quick nor one-sided. It involves deliberation, expert input, and accountability to multiple stakeholders.

Legislative accountability: the responsibility behind law-making 🔗

The legislature’s power to define crime carries with it a corresponding obligation: that power must be exercised in a manner that promotes justice and public welfare, not simply state control. This is why criminal legislation in India must be consistent with the fundamental rights guaranteed under Part III of the Constitution. A law that defines a “crime” in a way that infringes on freedom of expression, equality, or personal liberty can be struck down by courts as unconstitutional.

This judicial check on legislative power is what distinguishes a constitutional democracy from an authoritarian state. The legislature cannot criminalize conduct arbitrarily. It must act within constitutional limits, respond to identifiable harms, and design punishments that are proportionate. When Parliament oversteps – as critics argued happened with provisions of the old sedition law – courts have intervened. The BNS, notably, removed the colonial-era sedition provision and replaced it with a narrower offence focused on acts that directly threaten India’s sovereignty and unity, reflecting the legislature’s responsiveness to both judicial signals and public concern.

Furthermore, the legislature’s accountability is also political: lawmakers are elected representatives who answer to voters. This means that criminal laws – particularly those affecting individual liberty – are subject to democratic scrutiny in a way that administrative rules or judicial decisions are not. When laws are perceived as unjust or outdated, Parliament can and does amend or replace them. The 2023 reforms are the most sweeping recent example of this democratic accountability in action.

Why the legislature’s role is foundational 🔗

It is tempting to focus on courts when thinking about criminal accountability – after all, it is judges who convict and sentence. But without the legislature’s prior work of defining offences, establishing procedure, and prescribing punishments, courts would have no law to apply. Police would have no legal basis to arrest. Prosecutors would have no charges to frame. Stakeholders across the criminal justice system – police, judiciary, prosecutors, defense lawyers, victims – all operate within a framework that the legislature builds and maintains.

The legislature’s role is foundational precisely because it sets the terms of criminal accountability before any individual case ever begins. It decides what society will not tolerate, how violations will be detected and prosecuted, and what consequences will follow. Every other participant in the criminal justice process – investigators, prosecutors, judges, prison authorities – operates within the boundaries that legislators draw. This is why the quality, clarity, and fairness of criminal legislation directly determines the quality of justice that citizens ultimately receive.

What do you think? Given that criminal law and criminal procedure fall under the Concurrent List, how should the relationship between Parliament and state legislatures be managed to ensure both national uniformity and sensitivity to regional needs? And with the shift from the IPC to the BNS, does moving from a “punishment-first” to a “justice-first” philosophy in legislative design genuinely change outcomes for victims and accused persons, or is the change more symbolic than substantive?

References

1. https://www.animallaw.info/article/introduction-criminal-law-india
2. https://en.wikipedia.org/wiki/Seventh_Schedule_to_the_Constitution_of_India
3. https://legalaffairs.gov.in/sites/default/files/Concurrent%20Power%20of%20Legislation%20under%20List%20III%20of%20the%20Indian%20Constitution.pdf
4. https://testbook.com/key-differences/difference-between-ipc-and-crpc
5. https://www.bajajfinserv.in/criminal-law-in-india
6. https://prsindia.org/billtrack/overview-of-criminal-law-reforms
7. https://truelawyer.in/bharatiya-nyaya-sanhita
8. https://www.lexology.com/library/detail.aspx?g=c84a6d2d-d128-4ad4-b8ef-cac874bbdbd8
9. https://www.criminallawjournal.org/article/106/4-2-25-150.pdf