In the Supreme Court of India Criminal Appeal No: 913-933 of 2010 Citation: (2010) 5 SCC 600 Appellant: S. Khushboo Respondent: Kanniammal & Anr. Decided on: 28 th April 2010 Bench: Hon’ble Justice Dr. B.S. Chauhan, Hon’ble Justice K.G. Balakrishnan, Hon’ble Justice Deepak Verma
The discussion on premarital sex in Indian Society is like throwing a lit match into a pail of gasoline. It has always been in contention for being a topic of obscenity. This case is one of the important cases because it deals with the question of protection of fundamental right of freedom of speech and expression and it also clarified the criteria to check the obscenity of any statement. The Supreme Court stated that 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.
- S Khushboo [hereinafter referred as the “Appellant”] who is a well-known actress has approached the Hon’ble Supreme Court to seek quashing of criminal proceedings pending against her. As many as 23 criminal complaints were filed by Kanniammal & Anr. [hereinafter referred as the “Respondents”] against the Appellant, mostly in the State of Tamil Nadu, for the offences contemplated under Section 499, 500 and 505 of the Indian Penal Code, 1860 and Section 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986.
- The trigger of these offences was some remark made by the Appellant regarding the topic which was the increasing incidence of premarital sex, especially in the context of live in- relationship to a leading news magazine i.e., India Today and later on the same issue was reported in a distorted manner in another periodical i.e., Dhina Thanthi.
- Faced with the predicament of contesting the criminal proceedings instituted against her in several locations, the Appellant had approached the High Court of Madras, praying for the quashing of these proceedings through the exercise of its inherent power under Section 482 of the Code of Criminal Procedure, 1973. The High Court rejected her plea.
- At the same time, in order to prevent the inconvenience of litigating the same subject-matter in multiple locations, directed that all the cases instituted against the Appellant be consolidated and tried together by the Chief Metropolitan Magistrate, Egmore (Chennai). Aggrieved by the aforesaid judgement, the Appellant approached the Supreme Court by way of a batch of special leave petition.
- Whether the Appellant’s remarks could reasonably amount to offence of defamation as defined under Section 499 of Indian Penal Code, 1860.
From the Appellant Side:
- The learned Senior Counsel appearing for the Appellant has submitted that the Respondents were not the “persons aggrieved” within the meaning of Section 199(1) of Criminal Procedure Code and hence they were not competent to institute private complaints.
- The learned Senior Counsel said that the Appellant had made a fair and reasonable comment as a prudent person, and therefore the opinion expressed by the Appellant is fully protected under Article 19(1)(a) of the Constitution of India.
- Further, it was contended that even if the allegation in the various complaints are taken on their face value, the same do not disclose any offence neither according to the different sections of IPC nor the sections of Indecent Representation of Women (Prohibition) Act, 1986.
From the Respondents Side:
- The learned Senior Counsel appearing for the Respondents has submitted since the High Court has refused to quash the complaints, this court should also not interfere either, since the complaints require determination of factual controversies that are best left to be decided by a court of first instance.
- Further, it was submitted that the Appellant’s constitutional protection for speech and expression is not absolute and that it is subject to reasonable restrictions based on consideration of “public order”, “defamation”, “decency and morality” among other grounds.
- The Supreme Court observed that the Appellant has merely referred to the increasing incidence of premarital sex and called for its acceptance in the survey. At no point of time the Appellant described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader. Thus, it becomes difficult to appreciate the claim that the statements published as part of the survey were in the nature of obscene communications.
- The Court also observed that with regard to the complaints in question, there is neither any intent on the part of the Appellant to cause any harm to the reputation of the complainants nor we discern any actual harm to their reputation. In short, both the elements i.e., mens rea and actus rea are missing.
- The Court stated that in order to establish the offence under Section 509 IPC 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. Clearly this offence cannot be made out when the complainants’ grievance is with the publication of what the Appellant had in a written form. Likewise, Section 153(A) has no application to the present case since the Appellant was not speaking on behalf of one group and the content of her statement was not directed against any particular group either.
- The Court also noted that most of the complainants are associated with PMK, a political party which is active in the State of Tamil Nadu and hence, adds the weight to fact that the impugned complaints have been filed with the intention of gaining undue political mileage.
The Supreme Court held that there is no prima facie case of defamation in the present case. The court also found that the institution of the numerous criminal complaints against the Appellant was done in a mala fide manner. In order to prevent the abuse of the criminal law machinery, it would be appropriate to grant the relief sought by the Appellant i.e., to quash all the complaints. In such cases, the proper course for Magistrates is to use their statutory powers to direct an investigation into the allegation. Therefore, it is not the task of the criminal law to punish individuals merely for expressing unpopular views.
In conclusion, it can be said that this judgement of the Supreme Court is based upon a fact which the framers of the Constitution also recognized: that is the importance of safeguarding the freedom of speech and expression since the free flow of opinions and ideas is essential to sustain the collective of the citizenry. Also, an informed citizenry is a precondition for meaningful governance as it promotes the open dialogue between the government and society.