THE recent judgment of the Supreme Court in S. Khushboo vs Kanniammal is a signal contribution to the jurisprudence on free speech. The Bench comprising Chief Justice of India K.G. Balakrishnan and Justices Deepak Verma and B.S. Chauhan, on April 28, quashed all 22 criminal proceedings pending against the Tamil film actor Khushboo in various courts in Tamil Nadu and one in Indore, Madhya Pradesh in connection with her remarks on premarital sex.
To understand the significance of this judgment, it is necessary to explain the acronym SLAPP. A strategic lawsuit against public participation (SLAPP) aims to intimidate and silence critics by compelling them to join a legal battle and restrain them from expressing a view similar to the one that invited the SLAPP.
Coined by University of Denver professors Penelope Canan and George W. Pring, and explained by them in their book The Slapps: Getting Sued for Speaking Out (1996), the term refers to vexatious litigation resorted to by a petitioner solely to harass or subdue the defendant. The petitioners, in such cases, know their complaint has no merit. Yet, they achieve their objectives if the defendants submit to intimidation.
In many cases, the victim of a SLAPP suit may not have the resources to put up a defence, in view of the mounting legal costs, if the petitioner persists with the petition. As a result, an apology or retreat is seen as a viable option for the defendant. It is worrying that the number of SLAPP suits is on the rise in India.
Khushboo was undeterred by the cost of fighting the case, first before the Madras High Court and later before the Supreme Court. But even she had to retreat from her initial comments on premarital sex, made in the course of an interview she gave to India Today magazine in September 2005, when the Tamil daily Dina Thanthi reproduced it along with her defence.
India Today had conducted a survey on sexual habits of people residing in Indian cities. Increasing incidence of premarital sex was an issue in that survey. Khushboo was one of those who spoke to the magazine on this issue. She noted the increasing incidence of premarital sex in the context of live-in relationships and qualified her remarks by observing that girls should take adequate precautions to prevent unwanted pregnancies and the transmission of venereal diseases.
The interview was reproduced in Dina Thanthi, which also carried Khushboo's purported defence, following protests against the interview from certain sections of society. Khushboo later denied the defence' as carried in Dina Thanthi and asked the newspaper to publish her denial prominently to avoid legal action against it, even though the Supreme Court found nothing objectionable. But the denial was insufficient to activists of Pattali Makkal Katchi (PMK), who comprised most of the SLAPP petitioners against Khushboo.
Most of the complainants argued that the views Khushboo expressed in the interview were punishable under the Indian Penal Code's (IPC) provisions dealing with obscenity, defamation, intentional insult to provoke breach of peace, statements conducive to public mischief, and words, gesture or act intended to insult the modesty of a woman and under the Act that prohibits indecent representation of women.
Khushboo first approached the Madras High Court to quash all the criminal proceedings instituted against her. In its judgment on April 30, 2008, the High Court refused to quash the proceedings by exercising its inherent powers but directed that all the criminal proceedings be consolidated and tried by the Chief Metropolitan Magistrate at Egmore, Chennai. However, the High Court condemned premarital sex and live-in relationships, and this was seen to have prejudiced the trial. Khushboo appealed against the High Court's judgment in the Supreme Court.
In its judgment, the Supreme Court reminded the High Court that one of its paramount duties was to see that a person who was apparently innocent was not subjected to prosecution and humiliation on the basis of false and wholly untenable complaints. The Supreme Court held that none of the alleged offences of Khushboo survived when one examined the facts of the case. The High Court could have exercised judicial review to prevent a miscarriage of justice or to correct some grave errors that might have been committed by the subordinate courts, it held.
Specifically, the Supreme Court Bench pointed out that the Indecent Representation of Women (Prohibition) Act, 1986, was enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent manner. Khushboo merely referred to premarital sex in her statement which was published by India Today and Dina Thanthi. It would, therefore, defy logic to invoke the Act against her when she was not an advertiser or publisher by any means, the Bench held.
Section 509 of the IPC criminalises a word, gesture or act intended to insult the modesty of a woman and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act. Khushboo's views appeared in a written form, the court pointed out, thus ruling out the application of this provision against her.
Khushboo did not speak on behalf of any group, nor was her statement directed against a particular group. Therefore, Section 153A of the IPC, which makes promoting enmity between different groups an offence, did not apply to this case, the court said.
Section 292 (1) of the IPC states that the publication of a book, pamphlet, paper, writing, drawing, painting, representation, figure, etc., will be deemed obscene if it is lascivious (that is, expressing or causing sexual desire) or appeals to the prurient interest (that is, excessive interest in sexual matters), or if its effect tends to deprave and corrupt persons who are likely to read, see, or hear the matter contained in such materials.
Citing a previous ruling of the Supreme Court, the Bench said that if a mere reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. The test is whether a class of persons into whose hands the book, article or story falls will suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds.
Citing other decisions of the courts, the Bench said obscenity should be gauged with respect to contemporary community standards that reflected the sensibilities as well as the tolerance levels of an average reasonable person. Khushboo did not describe any sexual act or say anything that could arouse sexual desires in the mind of a reasonable and prudent reader. Her interview prompts a dialogue within society, wherein people can choose either to defend or to question the existing social mores, the Bench observed.
All that Khushboo did was to urge societal acceptance of the increasing instances of premarital sex when both partners were committed to each other, the court pointed out. That, it said, could not be construed as an open endorsement of sexual activities of all kinds. Even if it were to be assumed that her statements could encourage some people to engage in premarital sex, no legal injury had been shown since the latter was not an offence, the court explained.
When adults willingly engage in sexual relations outside the marital setting, no statutory offence takes place unless it is adultery, as defined under Section 497 of the IPC. The court referred to its decision in Lata Singh vs State of U.P. (2006) and reiterated that a live-in relationship between two consenting adults of heterogenic sex did not amount to any offence (with the obvious exception of adultery), even though it might be perceived as immoral.
The Bench supported the reasoning behind decisions by other courts that the context in which, and the purpose for which, reference to sex had been made should be understood fully.
The Bench said Section 499 of the IPC seeking to punish defamation was not attracted in this case because neither did Khushboo intend to cause harm to the reputation of the complainants nor could we discern any actual harm done to their reputation because of her remarks. Nowhere had she suggested that all women in Tamil Nadu engaged in premarital sex. It was a clear case of the complainants reading too much into her remarks, the Bench said.
Section 199 of the Criminal Procedure Code (CrPC) mandates that a magistrate can take cognisance of defamation only upon receiving a complaint from a person who is aggrieved. This limitation on the power discourages the filing of frivolous complaints. As Khushboo's remarks were not directed at any individual or a readily identifiable group of people, the complainants could not be aggrieved persons, the court suggested.
The results of India Today's survey showed that 26 per cent of respondents did not think that it was necessary for women to retain their virginity until the time of marriage. The Bench said Khushboo was not alone in expressing such a view, even though it might be unpopular or contrary to mainstream social practices. Even if her remarks caused mental agony to some sections of women in Tamil Nadu, there was no prima facie case for any offence, the Bench held.
It held that the institution of the numerous criminal complaints against Khushboo was done in a mala fide manner, as almost all the complainants were associated with the PMK. In such cases, the Bench said, the task of criminal law was not to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the freedom of speech and expression was indeed a very high one, and there should be a presumption in favour of the accused in such cases. One should be mindful that the initiation of a criminal trial was a process that carried an implicit degree of coercion and it should not be triggered by false and frivolous complaints, which amounted to harassment of and humiliation to the accused, the Bench explained.
The Bench's observations on the need to tolerate unpopular views in the socio-cultural space are significant. While maintaining that the free flow of opinions and ideas was essential to sustain the collective life of the citizenry, the Bench said people should keep their minds open to the fact that there were individuals or groups who held that sex outside marriage was normal.
Notions of social morality were inherently subjective and criminal law could not be used as a means to interfere unduly with the domain of personal autonomy. The complainants, instead of resorting to legal means, should have contested her views through the news media or any other public platform. Law should not be used in a manner that had chilling effects on the freedom of speech and expression, the court held.
The complainants against Khushboo might have lost the case in the Supreme Court, but they did achieve their purpose of harassing her with the case for five years and silencing her and others with similar views.
The Supreme Court's judgment, therefore, must form an important precedent to be followed by the lower courts when they are called upon to institute frivolous cases against individuals merely for expressing unpopular views.
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