colonial criminal statutes seldomcreating gradations in an existing offence,⁶ orchanging (usually increasing the punishment attached to offences.

Furthermore, the parliamentary debates are largely focused onquestions aligned to party politics, or issues of efficacy and impact, hardly ever discussing what principles may validlydetermine questions of criminalisation For instance, in the parliamentary debateson the Muslim Women (Protection of Rights on Marriage Act,,⁸ questions ofreligiously motivated legislation, the impact of the legislation on women, and the (impropriety of criminalising a civil issu e were brought up repeatedly But it wasnever clear precisely what (other than deterrence was sought to be achieved bycriminalising the pronouncement of triple⁹ speak only of the grounds on whichan act may becreate criminal offences More frequently, they expand the scope of anoffence, talaq The other way to search for an Indianway of thinking about questions of criminalisation or decriminalisation isby looking at how Indian courts have dealt with these questions The judgments of courts are a better source for this exercise than the parliamentary debates because, (a there have been several judgments in postcolonial India that have consider ed questions of criminalisation and decriminalisation, (b the focus of courtsis more likely to be on jurisprudential, principled considerations (at least in the way the judgments are written, and (c these judgments do frequently, if not inevitably, consider the Parliament”sintention in criminalising conduct when considering the submissions on behalf of the government Even though judgments usually de criminalised, indoing this they are also concerned with the appropriate goals of criminal law or the principles underlying valid criminal legislation With this in mind, this ch apter shall analyse ju dgments by the High

Judgment Analysis The Criminalisation of Speech

Courtsand the Supreme Court of India, delivered postIndependence, which considerthe validity of criminal legislation or offences, with the aim of discovering—(a whether there is an Indian way of thinking about criminalisation anddecriminalisation, and (b if so, what is it, and to what extent can it serve as a usefulguide for lawmakers?

Questions of criminalisation and decriminalisation have come to constitutionalcourts framed in the language of the violation of fundamental rights Unsurprisingly, therefore, decisions of these courts have also focused on whether the statutes beforethem might contravene fundamental rights, and whether this contravention might bejustified by the reasonable restrictions written into them In the following sections., however, I contend that while the courts cannot avoid evaluating the statutes beforethem through the lensof fundamental rights., this should not prevent them fromviewing the question of (decriminalisation as a distinct one In fact, recent judgments Certain forms of speech (seditious, defamatory, obscene have been sought to berestricted through criminal law, meaning that such speech attracts libertylimitingcriminal sanction which is the most severe consequence that the law can impose.

The cases in this section consider the way the courts have dealt withthecriminalisation of speech.

A Critical Examination of The Discourse of Indian Courtsƒ have lookedat a set ofprinciples outside the boundsoffundamental rights when determining whether the criminal law was the appropriate methodto achieve the purported ends of the statute, without an y challenge to their authority to do so However,-. this approach is still relatively new and rare, and its application,-. somewhat tentative Asa result, most judgments on (decriminalisation continue to revolve primarily around the violatio n of fundamental rights Whil e this does not necessarily lead to “bad” or “incorrect” decisions, important considerations, which would have come to the fore if the courts considered-. (d ecriminalisation as a distinct issue as well, do not receive due attention Kedar Nath Singh vThe State of Bihar The key question before the Supreme Cour t, in this case, was whether Sections 124-A (sedition and 505 (statements conducing to public mischief of the

Indian Penal Code, 1860 (IPC were constitutionally valid in the light of Article 19(1a(rightto freedom of speech and expression of the Constitution of India, 1950 (Constitution After a detailed examination of precedent on Section 124-A, IPC, the criminalisation of purportedly seditious speech by Section 124-A washeld to be constitutionallyvalid insofar as it sought to prevent the harm of “disorder and disturbance of peace by resort to violence”,even though thelanguage of criminalisation was never used, and the Court did not separatelyconsider the question of criminalisation Relying instead on Article 19(2of the Constitution, it concluded that the criminalisation of sedition was a reasonablerestriction on the freedom of speech and expression.

The principle that appears to underlie this decision is that the preventionof a certain degree of harm to public order (“ incitement to an offence” and protectingthe “sovereignty and integrity of India and securityof the State”, which are listed as reasonable restrictions to Article 19(1a, are good reasons for criminalisation Thisshould not be taken to mean., in my view (upon which I elaborate in the followingsections, that any and all grounds stated under Article 19(2 may always andunambiguously provide reasons for, or justify, criminalisation.

In response to the contention that defamation constitutes a civil wrong toan individual”s reputation which need not beaddressed through criminal sanction, the Court held that since the individual is partof society and the defamatory comments lower the reputation of the individualwithin society, defamation cannot simplybe a private matter.

In this case, the Court made the choice to move beyond the jurisprudence of fundamental rights andconsider the issue of criminalisation separately To that end, the Court discussed a range of precedents. (from India and academicopinion (mostly fromclassic Englishtexts which were, even at the time of this judgment, somewhat outdated, andcertainly not reflective of the full range of the discussion on “what is a crime”.

Subramanian Swamy vUnion of India The Supreme Court of India, in this case, examined the constitutional validity of criminal defamation under Section 499, IPC.

From this discussion, the Court concluded thatdefamation is a public wrong that, despite being directed at an individual, harms society in general, although inreaching thisconclusion, the Court appeared to be moving backwards, concludingthat because defamation had been criminalised and crimes ought to be a publicconcern, defamation was a criminal concern.

The correct approach in determiningthis particular question, in my opinion, would have been to look at why defamation, in and of itself, is a public concern worthy of criminalisation and then to assesswhether the criminalisation of defamation was valid.

The Court gave examples ofuntouchability, child labour, trafficking, and sexualharassment to make the point that conduct against individuals may nevertheless berelevant to the public interest.

This, of course, was never in doubt As the Court”s discussion of Sandra Marshall and Antony Duff”s theory of public wrongs indicates, wrongs may concern private spaces or individuals and yet be public in nature if theythreaten publicorder or the interests of the society at large Since the Court madethe choice to consider the question ofcriminalisation separately on the principle of “public wrongs”, the relevantpoint ofconsideration was, in fact., why defamationshould. In response to the petitioner”s argumentthat criminal defamation is excessive andhas a chilling effecton speech, the Court held that “reputation” was an essentialaspect of dignity under Article 21(the right to life and personal liberty, andtherefore criminal defamation., which seeks to protect reputation, calls for a balancebetween Article 21 and Article 19.

On balance, the Court found that the right toreputation under Article 21 meant that the law of criminal defamation was within A Critical Examination of The Discourse of Indian Courtsƒ qualify as a public wrong However, this point remains unanswered in the judgment. (except for the unsubstantiated assertion that the protection of an individual”s right to reputation is “imperative for social stability in a body polity” (Footnote No. 19 contd Amongst modern texts on criminalisation, the Court referred to RA. Duff”s book, Answering for Crime (2007 and Duff and Marshall”s article, “Publi c and Private Wrongs” (2010, both of which define “crime” from the perspective of legal morali sm (a branch of the philosophy of criminal law which stresses and approves the re lationship between law and morali ty, but did not refer to works that approached the subject from the perspe ctives of consequentialism, utilitarianism, contractarianism, or constituti onalism, among other schools of thought Even the court”s reference to Duff and Marshall”s works is so mewhat incomplete because the court does not demonstrate how these theories justif y the criminalisation of defamation.

But does a person who makes defamatoryremarks about anothe r deserve to havetheir liberty curtailed through criminal action? If the answer to this question is no, as I contend it should be, then defamation does not meet the standard of a publicwrongA person who makes defamatory remarks about another does not deserve tobe criminally sanctioned because the harm caused by defamation is entirely personalin nature and can easily be remedied by civil action which remains available to theaggrieved party In fact, the ability of the rich and powerful to intimidate criticsthrough the coercive force of criminal defamation goes against the public interest..

Criminal defamation, in other words, is the legal equivalent of using a sledgehammer to break openan egg.

While the Court did observe that Section 499, IPC is not excessive or arbitrary, it did not give any consideration to whethersocietal or public interest is protected bycriminalising defamation As with other public wrongs, the rationale for treating defamation as a public wrong worthy of criminalisation should, inmy opinion, be twofold—first, to deter defamatory speech through fear of criminal sanction, and second. (more importantly, to justly punish defamatory speech by depriving the accused of their liberty and/or property.

The Criminalisation of Intimacy and Sexuality

Notwithstanding this objection, it is clear that the Court”s judgment, in this case, focused on two principles of criminalisation —the presence ofharm-., and the standardof a public wrong In applying these principles, however, the Court did not distinguishbetween tests of constitutionality (is X a reasonable restriction on speech? andprinciples of criminalisation (is X a validcandidate for coercive criminalsanction-.?, frequently discussing both questions interchangeably This conflationis a conceptualerror While criminallaw that is unprincipled may also be unconstitutional. (forinstance, by being arbitrary, unconstitutionality is not a reason for criminalisation, nor would every conduct found tobe unconstitutional callfor criminalsanction.

A good example of this would be tripleNaz FoundationIPC, to the extent that A Critical Examination of The Discourse of Indian Courtsƒ talaq The Supreme Court of India heldthe pronouncement of triple talaq unconstitutional and void., but the rationale for unconstitutionality (arbitrariness, noncompliance with the principles of the Quran does not map onto criminalisation Likewise, just because the Constitutionrecognises reasonable restrictions on constitutionally guaranteed freedoms, it doesnot follow that these restrictions may automatically take the form of criminal sanctionThe distinction between these questions of constitutionality and criminalisation was obliquely referenced in Gian Kaur vThe State of Punjab, where the Court held that the desirability of retaining Section 309, IPC (attempt to commit suicide is “a different matter and nonsequitur in the context of constitutional validity of that provision which has to be tested with reference to some pr ovision in the Constitution of India, 1950”. Naz Foundation, a nongovernmental organisation filed a Public Interest Litigation (PIL challenging the constituti onal validity of Section 377,

The Division Bench dealt also with theinteraction between morality and criminalisation, although here again, the focus of the discussionwas not criminalisation per se, but whether morality was anappropriate ground to restrict fundamental rights.

While the Court quoted fromsources that were explicitlyconcerned withthe appropriate purpose of criminallaw, such as the decision inor the Wolfenden Committee Report, the key questionit sought to answer was whether morality was a compelling State interest that would allow the infringement of a fundamental right, and if so, what form of morality it would be The Court concluded that the enforcement ofpublic or majoritarian moralitywould not amount to compelling State interest, and would not justify the restriction of a fundamental right Only the enforcementof constitutional moralitywould pass the test of compelling State interest.

The limited guidance that may be drawn from this judgment is thatto the extentthat morality is a driver of criminalisation, the enforcement of public morality Dudgeon vUnited Kingdom

In other words, laws (including criminal laws that are based on, or seek toimplement morality, must not fall foul of constitutional morality.

However, sincethe judgment viewed the issu e of Section 377 from the perspective of infringementof fundamental rights, the “compelling State interest.” test centralised constitutionalmorality only to determinations of when a fundamental right may be infringed It follows from this that constitutional moralityought to be relevant whether or not thisinfringement takes place through criminalisation or some other legal restriction orpolicy The judgment, however, did not delve specificallyinto whether, and to whatextent, the standard would apply as a principle ofcriminalisation in Indian law.

One of the argumentsof the petitioners inThe question of criminalisation wasspecifically discussed only by Justice Chandrachud and though the discussion wassomewhat limited and outdated (beingbased primarily in 19th and 20thcenturyliterature which has since been supported, elaboratedaswell as countered,it didgive a sense of how decisions of (decriminalisation should be approached by Indiancourts Based on his discussion of the views of Bentham,Mill,Devlin,and Hart,he concluded that one common element in all (major theories of crime andcriminalisation is the requirement of injury or harm to a third person or to society.

Based on this, he held that the conduc t covered by Section 377, insofar as itconcerns consenting adults, does not cause harm to any person, nor does it pose a A Critical Examination of The Discourse of Indian Courtsƒ Navtej Johar In thiscase, a fivejudge bench of the Supreme Court of India once again considered the constitutional validity of Section 377, IPC The decision of the High Court of Delhi in Naz Foundation had been overturned bya division bench of the Supreme Court of India in Suresh Kumar Koushal vNaz Foundation Navtej Johar was that the decision of the Court in Suresh Koushal was driven by societal or majoritarian morality, when in fact, it should have been based on constitutional morality.

Through this conclusion, the decision reiterated the need to base criminalisation on the existence ofa “harm” or “public wrong”, although it is unclear whether these standardswere meant to be threshold requirements (you cannot criminalise conduct unless it isharmful or is a public wrong or to provid e positive grounds for criminalisation (if a conduct is harmful or qualifies as a public wrong, it is a fit candidate for criminalisation.

It also appears that the standards of-. “harm” and “public wrong” were seen as emergingfrom the same foundation (“harm” and existing on the same spectrum (“harm” to theindividual and “harm” to society at large, when in fact, the origins of the two standardsand the meanings they conveyare completelydistinct.

As withincluding (but not limited to the interpretation of a right in a matterof decriminalisation.

The discussion on constitutional morality in this judgment, however, did clarify that constitutional morality was meant toconvey thesubstantive morality of the Constitution.

While I have argued elsewhere that constitutional morality may, so understood., be used to understand what qualifies as a harm worthy of criminalisation,the Court itself did not make such an assertion.

The Court”s decision to decriminalise Section 377, IPC, while touching upon Naz Foundation, the use of constitutional morality in Navtej Johar extended to any law that deprived the rights and entitlements offull and equal citizenship,

Criminalisation of Personal Choice

A number ofconstitutional arguments were consideredin deciding whether these prohibitionswere valid, such as the individual”sright to privacy (extending to the decisionalautonomy to determine what to eat and drink,and Directive Principles of State Policywhich encourage the State to prohibit the slaughter of cows, calves, and othermilch and draught cattle,or which encourage the State to prohibit theconsumption of liquor or other intoxicating substances which are injurious tohealth.

InBut sincethe personal possession or consumption of the prohibited animals did not fall within A Critical Examination of The Discourse of Indian Courtsƒ based on the apparent violation of the fundamental rights recognised by Articles 14 The two cases saw the High Court of Bombay and the High Court of Judicature at Patna dealing with a broad range of constitutional questions Relevant to the present discussionis the fact that the possession, sale and consumption, transport, etcof cow, buffalo, or bull”s slaughtered meat were prohibited, and the contravention of the prohibition was declared to be an offence in Maharashtra Zahid Mukhtar, the High Court of Bombay heldthat Section 5-D of the Maharashtra Animal Preservation (Amendme nt Act, was violative of the right to privacy recognised under Article 21 to the extentthatit prohibited the possession and consumption of cow, bull, or bullock slaughtered outside the state The intention of the legislature to prohibit the slaughter of cows in a primarily agrarian society, anchored in Article 48, was relied upon to hold that other prohibitions on transport, slaughter, or sale of such animals were constitutionallyvalid.

Offences against Marriage

Joseph Shine vUnion of India(adultery Examining the provision on the touchstoneof Articles 14 and 21 of the Constitution., the Court inand betrayed a blatant disregard for theprivacy, dignity, and autonomy of the wife.

Justice Misra also discussed the propriet y of treating adultery as a criminaloffence In a marked departure from the stand of the Court in previousconstitutional challenges to the provision,he couched adultery as a private (civilwrong, notwithstanding the impact it could have on a marriage.

He distinguishedadulteryfrom other offences that might take place within the context of marriage, such as domestic violence or cruelty, on the ground that the latter was meant toprevent and punish serious harm to a married woman and was, in that sense, aptsubjects of criminalisation.

This point was further clarified and driven home by Justice Chandrachud, who stressed the feministadage that “the personal is political”, meaning that “private” and “public” should not be determined by the space (home vsmarket or the relationship (husband and wife vsemployer and employee withinwhich the conduct takes place, but rather the ramifications that it would have for the publicsphere.

It is alsoworth considering that Justice Chandrachud, in hisjudgment, held in no uncertain terms thatenforcement of marital fidelity was not a valid object ofcriminalisation, “[j]ust as all conduct which is not criminal may notnecessarily be ethically just., all conduct which is inappropriate does not justify being A Critical Examination of The Discourse of Indian Courtsƒ In this case, a fivejudge Bench of the Supreme Court considered the constitutional validity of Section 497, IPC Joseph Shine held that the offence ofadultery, asrecognised by the IPC, was unconstitutional because it treated the wife as the chattel of the husband,

Justice Malhotra also addressed this issuedirectly, holding that though adultery wa’s a moral wrong against the spouse, it didnot have the element of public wrongfulness that would justify its criminalisation.

She also observed astutely that the Stat e must follow a minimalist approach tocriminalisation, striking a balance with the right of the individuals to make theirown personal choices.

It seems clear, therefore, thatprotecting the sanctity of the abstract institution ofmarriage was not approved as a valid ground for criminalisation inthis judgment.

And even though the focus of the Court was, again, the constitutionality of Section 497, IPC, the fivejudge Bench unanimouslyheld that the elements of “harm” and “public wrong” must be present for valid criminalisation.

meaning that the utterance of In response to this, the Courtheld Nadeem Khan vUnion of India Without going into the merits of the challenge to the Muslim Women (Protection of Rights on Marriage Act, 2019 since a similar challenge is pending before the Supreme Court of India, the High Court of Delhi, in this case, commented briefly on the “object” of the legislation Among other things, the law criminalises and makes punishable the pronouncement of triple talaq, that is, attempting to effect divorce through the Muslim personal law practice of talaqibiddat The practice has already been heldto be unconstitutional and void by the Supreme Court in Shayara Bano vUnion of India, talaq, talaq, talaq no longer has legal effectThe petitioner argued before the Court that there was no purpose to criminalising the pronouncement of triple talaq once ithad been rendered ineffective by declaring it void and unconstitutionalprima facie that the purpose of criminalising the pronouncement seems to have been to deter the practice, and it was the legislature”s prerogative to declare itan offence There islittle disagreement that deterrence may be a legitimate goal of criminal legislation, but it cannot and should not be the sole purpose of and the justification for criminalisation The legislature cannot, on a whim, decide that it wants to deter certain conduct by the threat of criminal sanction without justifying why that conduct deserves to be deterred and merits the restriction of personal liberty and

Criminalisation by the Court

This was anorder issuingnotice, and therefore, the comments of the Court on this substantive issue were onlypreliminary in nature, which should not be taken to be indicative of Indian judicialthinking on criminalisation However, the Court”s observationsdo highlight theneed for clarity on the subject, something of a roadmap for decisions about (decriminalisation that can criticallyengage withthe state”s decisions on (decriminalisation.

Independent Thought vUnion of IndiaPrior to thisjudgment, an exception to Section 375, IP C provided that sex by a man with hisown wife would not be rape if thewife was overthe age of fifteen.

A Division Bench of the Supreme Court inwhich defined “child” asa person under the age of 18.

Once again, the focus of the Court wason whether the exception to Section 375, IPC was violative of Articles 14, 15(right against discrimination, and, and the Court was, therefore, concerned with the ways in which the exception was A Critical Examination of The Discourse of Indian Courtsƒ This case deserves consideration because it is a rare instance in which a court intentionally expanded the scope ofa crim inal provision, essentially criminalising acts that were, up to thatpoint, exempt from criminalisation Independent Thought modified this exception to the effect that sex by a man with his own wife would not be rape if the wife is over the age of 18. In the mostbasic sense, the Court simply brought the IPC in tune with other laws, such as the Protection of Children from Sexual Offences Act, 2012

The Court, however, did alsodiscuss why the conduct inquestionqualified asrape It demonstratedthat rape is worthy of criminalisation on the grounds that it violates the bodily integrity ofwomen and is instrumental in subordinating women.

With regard to child brides, in particular, the rationale of the Court was that regardless of marriage, childrenare considered legally incapableof giving valid consent to sexual intercourse, and the factum of marriage is not proofof consent If anything, forced sexual intercourse may simply be an extension of a forced child or early marriage.

In stating this, the Court implicitly acknowledgedthe harm and affront that is caused to a person”s dignity and sexual autonomy whentheir lack of consent is ignored The Court also noted the incidentalharms of suchsexual intercourse, such as early pregnanc y and childbirth, which might be physicallydangerous for young girls (as well as their children,and would not sufficientlyrespect their right to make reproductive choices(in addition to severely limitingtheir prospects byimposing the burdens and responsibilities of motherhood tooearly in life The health consequences of early pregnancy and childbirth may, then, have consequences for society at large byperpetuating intergenerational inequality.

It appears that the decision of the Court was equally motivated by concernsregarding the violation of the fundamental rights of child brides between the agesof 15 and 18 years, and by the determination that sexual intercourse with child bridesin that age group was likely to be nonconsensual and severelyharmful, both to theindividualchild and to society at large Like Subramanian Swamy before it, Independent Thought affirmed “harm” and “public wrong” (although here again, it appeared that “harm” and “public wrong” were applied as conc epts along the same spectrum as principles of criminalisation, although in the latter case the application of the principle was far more lucid And unlike Navtej Johar (which was decided after this case it confirmed these principles as positive principles of criminalisation instead of negative constraints on criminalisation, perhaps because the two cases were approaching the issue from different starting points The conclusion of this case appears tobe, however, that where a conduct is sufficiently harmful, either to an individual or to society in general, thre aten the stability and security of society, there are good reasons to criminalise such co nduct At least insofar as marital rape of

Conclusion

From the foregoing analysis., it emerges that discussions on (decriminalisation by Indian courts have ordinarilybeen anchored, given the function of these courts., inquestions of constitutionality, meaning that the jurisprudence of constitutionalityand criminalisation have frequently overlapped This has meant that reasonablerestrictions on fundamental rights have been presented as grounds forcriminalisation without considering whethe r the restriction (e ven if reasonableactually needs to be imposed through criminal law More recently., since thequestionof the legitimacy or validity of criminalisation has been discussed separatelyfrom the question of constitutionality (evenif bothissues are discussed in the samejudgment by courts in some cases (seebut since it embodies the substantive morality of the Indian Constitution, its application is likely to be distinctly Indian Notwithstanding A Critical Examination of The Discourse of Indian Courtsƒ Subramanian Swamy, Navtaj Johar, Joseph Shine, some clarity on what Indian courts consider to be appropriate principles of criminalisation seem to be emerging Based on the discussionabove, I would summarise the positionthat can be gleaned fromwhat has been enunciated by courts in the following key points:

Inwhich has the followingcomponents: 1. A measure restricting a right must have a legitimate goal (legitimate goal stage 2. It must be a suitable means for furthering this goal (suitability or rationalconnectionstage 3. There must not be any less restrictive but equally effective alternative (necessitystage 4. The measure must not have a disproportionate impact on the rightholder (balancing stage Whether every act of criminalisation would involve the restriction of a fundamental right may be open todebate (with which a meaningful engagement isbeyond the scope of this discussion Butin the broadest terms, every decision tocriminalise certain conduct is a decisionto limit personal autonomy, and criminalsanctionis undoubtedly a threat to personal liberty The test of proportionalityapproved inThe principles of criminalisation thathave been affirmed and reiteratedby constitutional courts in India also map well ontothis test.

Justice KS. Puttaswamy vUnion of India laid down the characteristics that a restriction to a fundamental right would require to qualify as “reasonable”. The Court reiterated and approved the test of proportionality laid down in Modern Dental College and Research Centre vThe State of MP, Puttaswamy, therefore, can also serve as a useful guide to decisions on (decriminalisation, allowing the Court to consider it separately from the issue of the violation offundamental rights without fully leaving the fundamental rights framework.

The legitimate goal stage would require the decisionmaker to establish that theconduct being criminalised isharmful Based on the discussions above, this does notsimply mean showing that there is some harm (that is, for instance, that cheating onone”s spouse causes hurt to the spouse and potentially destabilisesthe marriage butthat it is a harmworthy of criminalisation Here, the standard of “public wrong” andthe lens of constitutional morality become relevant The “harm” should be of a kindthat threatens the security or stability of society, that is legitimately a public concern.

And what should be a public concern, orwhat can threaten the stability of societyshould, in turn., be assessed using the lens of constitutional morality While thislastprong has not, so far, been stated by Indian courts, it does follow from the idea that the morality relevant to considerations on criminalisation is constitutional morality.

Since “harm”-. and “public wrong” are, in fact, subjective concepts, their interpretationis always likelyto make the moral lens relevant So, if asked, “is the existence andaffirmation of nonheterosexual/heteronormative identities a threat to the stability of society?”, the answer would be “no”, because diversity, inclusiveness, personalautonomy, privacy, and dignity are essential elements of constitutionalmorality.

The rational connection stage would require the decisionmaker toshow thatcriminalisation (in the manner intended woul d, indeed, help prevent or address theharms that are caused by the conduct In this context, if the “harm” in question isviolation of the sanctity of a marriage, wouldsending a third person (whois not part of the marriage to jail help preserve a marriag e where infidelity has already taken place?

And can it do so if the infidelity of the husband does not have the same consequence?

The necessity stage is perhaps the most important in this application Thedecisionmaker would need to demonstrate: first, that criminalisation and nothingelse could achieve the aims that are sought to be achieved., and secondly, thattheconduct merits the severity of the criminal sanctionHere, Justice Malhotra”s suggestion that the State should be minimalistic in criminalising conduct becomesrelevant The questionthen becomes, if a person has sex with a married woman, does he deserve to go to jailfor it? Would civil consequences, such asthe optiontodivorce on the ground of adultery, not suffice?

And finally, the balancing stage would require the decisionmaker to demonstratethat the degree to which the criminalsanction infringes upon personal liberty is notdisproportionate to the harm sought to be addressed This would be relevant notonly indecisions to (decriminalise, but also in prescribing potential sentences for the proscribed conduct At this stage, then-., the burden on the decisionmaker is toshow that, for instance, the enforcement of public morality (even assuming that is a legitimate goal justifies the stigma, repression, and assault on nonheterosexual/ heteronormative identities that results fromcriminalisation.

This roadmap can, in myopinion, ensure that decisions to criminalise ordecriminalise conduct are principled, consistent, and respectful of personal liberty, freedom, dignity, and autonomy It can ensure State minimalism and restraint incriminalisation so that criminal law is notreduced to the whims of the legislature It can help distinguish conduct that is unethical, from that which is unconstitutional, and both ofthese from conduct that is worthy of criminal sanction, and by so doing, single out conduct that may validly be (decriminalised.

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