Examine the risks of executive overreach through subordinate legislation in matters of criminal law. What safeguards does the Indian Constitution provide?

Criminalisation — declaring conduct an offence and attaching punishment to it — is an essentially legislative function. When rules framed by the executive supply what a penal statute omits, criminal liability rests on administrative say-so rather than law, as the Supreme Court underlined in August 2026 while holding the U.P. Gangsters Act, 1986 "still-born" [1].

How overreach enters criminal law

• Definition without an offence: the Act defines "gang" and "gangster" and fixes punishment, but never declares any act or omission an offence; the missing element was left to executive-framed Rules [1].
• Administrative triggers: prosecution rested on police-prepared "Gang Charts" — the ipse dixit of the Executive [1].

Risks involved

• Status over conduct: the law punishes what a person is labelled, not what they did; conduct can be proved or disproved in court, a status cannot [1].
• Accuser becomes definer: the same wing that investigates also decides who falls inside the penal label — two practising advocates were booked over a Bar Association election dispute [1].
• Longevity masks defect: nearly four decades of use, since each case was argued on facts, never on the structural flaw [1].
• Spillover into discourse: undefined tags like "anti-national" or "urban naxal" work the same way — real stigma, no legal standard.

Constitutional safeguards

• Article 20(1): no conviction except for violation of a law in force at the time of the act [2].
• Articles 13 and 21 with judicial review: penal laws must be valid and procedure fair and reasonable [2].
• Separation of powers and the bar on excessive delegation: Rules may regulate procedure, never create a crime.
• Legislative oversight: rules must be laid before the House and are scrutinised by Committees on Subordinate Legislation.

The judgment restores a first principle rather than striking down a statute: the remedy lies with the legislature, which must write the offence into the Act itself. The Union's Jan Vishwas (Amendment of Provisions) Act, 2023, which recast 183 provisions across 42 Central Acts [3], and its 2026 successor Bill [4], show such review is feasible; extending that audit to State special laws would align criminal statutes with Article 20(1) and strengthen the rule of law.