Criminalisation vs Decriminalisation: An Examination of the Evolving Parameters of Morality and Law in Indian Penal Legislation

Indian criminal law is at a historic turning point, moving away from moralism from the colonial era and towards a rights-based constitutional framework. The Bharatiya Nyaya Sanhita 2023 (BNS)[1] passage is not just a matter of legislative housekeeping; it is a complete rethinking of the State's moral authority and penal power. Two macro-trends define this jurisprudential transition: first, the systematic decriminalisation of consensual, private, self-regarding conduct—such as homosexual intimacy (Section 377 IPC), adultery (Section 497 IPC), and attempted suicide (Section 309 IPC)—driven by the Supreme Court’s embrace of constitutional morality and transformative constitutionalism, reading Articles 14, 15, 19, and 21[2] in a dignity-autonomy register; and second, the targeted criminalisation of contemporary harms inadequately addressed under the IPC, including mob lynching (Section 103(2) BNS), organised crime (Section 111 BNS), terrorism (Section 113 BNS), and deceit-based sexual exploitation, signalling a harm-centric and victim-focused approach consistent with constitutional values. This change represents a philosophical transition from legal moralism, which criminalised actions based on majority views of morality, to a framework based on constitutional morality, which limits the scope of criminal law to actions that clearly harm others or violate constitutional rights. The essay delineates this trajectory by employing theoretical frameworks including the harm principle, legal moralism, constitutional morality, and transformative constitutionalism; it examines the continuum from colonial times to the present; analyses significant decriminalisations; evaluates recent BNS criminalisation’s; and critically assesses the ongoing tensions between constitutional and public morality, alongside the persistent issues of overcriminalization, definitional clarity, and enforcement discretion.