NEW DELHI: The
Supreme Court on Thursday said the government should adopt a minimalist approach in criminalising offences and desist from criminalising an act which is essentially civil in nature.
While decriminalising adultery by striking down
Section 497, an SC bench said the autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure through criminal sanction.
Writing a separate judgment, Justice Indu Malhotra said, "In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against state security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole. Adultery is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law? In fact, a much stronger justification is required where an offence is punishable with imprisonment. The state must follow the minimalist approach in criminalisation of offences, keeping in view respect for the autonomy of the individual to make his/her personal choices."
