Love, Law And Limits: The Constitutional Limits Of Criminalizing Consensual Adult Relationships
Lubnah Jariwala, New Law College, Bharati Vidyapeeth (Deemed to be University), Pune
ABSTRACT
The extent to which the State may employ criminal law to regulate the consensual private relationships of adults remains a significant constitutional and jurisprudential question. This essay examines whether criminal sanctions are a legitimate means of enforcing societal morality in matters of personal autonomy, marriage, and intimate relationships. Drawing upon liberal constitutional theory, particularly John Stuart Mill's Harm Principle, and contrasting it with theories of legal moralism, the paper argues that criminal law should be confined to preventing tangible harm rather than enforcing prevailing moral or social norms. Through an analysis of judicial decisions including Shayara Bano v. Union of India, Lawrence v. Texas, Dudgeon v. United Kingdom, Lata Singh v. State of U.P., and Shafin Jahan v. Asokan K.M., the essay evaluates the constitutional principles of liberty, dignity, privacy, and decisional autonomy. It further critiques the criminalization of instant triple talaq as an example of punitive state intervention despite the underlying act having been declared legally void and argues that issues arising from consensual relationships are more appropriately addressed through civil legal mechanisms rather than penal sanctions. While emphasizing that the State bears an unequivocal duty to criminally prosecute coercion, abuse, and honour-based violence, the paper contends that consensual adult relationships must remain beyond the reach of the criminal justice system. It concludes that a constitutional democracy committed to individual liberty should distinguish between protecting citizens from harm and policing private moral choices, thereby preserving the fundamental rights guaranteed under the Constitution.
