Khushboo vs Kanniammal & Another, 2010 5 SCC 600
Before the Supreme Court of India.
Decided on: 28 April 2010
Bench: K.G. Balakrishnan, Deepak Verma, B.S. Chauhan
Author of the judgement: B.S. Chauhan
Advocate for the appellant: Ms. Pinki Anand
Advocate for the respondent: Sh. Kanagaraj, Sr. Adv., Sh. S. Gowthaman, Adv. and Sh. B. Balaji, Adv.
In September 2005, `India Today’ a fortnightly news magazine had conducted a survey on the subject of the sexual habits of people residing in the bigger cities of India. One of the issues discussed as part of this survey was the increasing incidence of pre-marital sex.
As a part of this exercise, the magazine had gathered and published the views expressed by several individuals from different segments of society, including those of the appellant. The appellant expressed her personal opinion wherein she had noted the increasing incidence of pre-marital sex, especially in the context of live-in relationships and called for the societal acceptance of the same. However, appellant had also qualified her remarks by observing that girls should take adequate precautions to prevent unwanted pregnancies and the transmission of venereal diseases.
Subsequently, `Dhina Thanthi’, a Tamil daily carried a news item on 24.9.2005 which first quoted the appellant’s statement published in `India Today’ and then opined that it had created a sensation all over the State of Tamil Nadu.
Soon after the publication of the above-mentioned news item, the appellant had sent a legal notice dated 2.10.2005 to the Editor of `Dhina Thanthi’, categorically denying that she had made the statement quoted above. In fact, the appellant had asked the publisher to withdraw the news item carried on 24.9.2005 and to publish her objections prominently within three days of receipt of the notice, failing which the appellant would be constrained to take appropriate legal action against the newspaper.
Various complaints were filed against the appellant for offenses punishable under Sections 499, 500, 504, 505(1)(b) and 509 IPC read with Section 6 of Act 1986.
As mentioned earlier, the appellant approached the High Court of Madras to seek to quash of all the criminal proceedings instituted against her in this connection. In its judgment dated 30.4.2008, the High Court refused to quash the proceedings by exercising its inherent powers under Section 482 Cr.PC, on the premise that the relevant considerations, in this case, were questions of fact which were best left to be determined by the Chief Metropolitan Magistrate at Egmore, Chennai.
Contentions raised by the complainants:
- Some parts of the statements published in `India Today’ and `Dhina Thanthi’ have brought great shame since it had suggested that women of her profile had engaged in premarital sex. It was further alleged that the appellant’s remarks had caused mental harassment to a large section of women, and in particular women from Tamil Nadu were being looked down upon with disrespect and contempt.
- It was alleged that the appellant’s remarks were an abuse against the dignity of the Tamil women and that they had grossly affected and ruined the culture and morality of the people of the State.
- It was further submitted that these statements could persuade people to involve themselves in unnatural crimes and that the appellant’s acts amounted to the commission of offenses punishable underSections 499, 500, 504, 505(1)(b) and 509 IPC read with Section 3 and 4 of Act 1986.
whether the allegations made against the appellant support a prima facie case of the offenses mentioned in the respective complaints
whether the complaints were made in a bona fide manner.
Arguments of the appellant:
- The complainants (respondents in these appeals) were not `persons aggrieved’ within the meaning of Section 199(1)(b) PC and hence they were not competent to institute private complaints about the alleged offenses.
- It was stated that the appellant had made a fair and reasonable comment` a prudent person, and therefore, the opinion expressed by the appellant is fully protected under Article 19(1)(a) of the Constitution of India which guarantees freedom of speech and expression to all citizens.
- Furthermore, it was contended that even if the allegations in the various complaints are taken on their face value and accepted in their entirety, the same do not disclose any offence whatsoever and the opinion of the appellant does not, by any means, fall within the ambit of Sections 499, 500 and 505 IPC or Sections 3 and 4 of Act 1986.
- It was also canvassed that the criminal proceedings had been instituted in a mala fide manner by the workers of a particular political party, with the intention of vilifying the appellant and gaining undue political mileage.
Arguments of the respondent:
- Since the High Court has refused to quash the complaints, the Supreme Court should not interfere because the complaints require determination of factual controversies that are best left to be decided by a court of the first instance.
It was argued that the endorsement of pre-marital sex by a prominent person such as the appellant would have a morally corruptive effect on the minds of young people. Her statement would definitely obscure some basic moral values and expose young people to bizarre ideas about premarital sex, thereby leading to deviant behavior which would adversely affect public notions of morality.
- It was contended that the constitutional protection for speech and expression is not absolute and that it is subject to reasonable restrictions based on considerations of `public order’, `defamation’, `decency and morality’ among other grounds.
When the criminal law machinery is set in motion, the superior courts should not mechanically use either their inherent powers or writ jurisdiction to intervene with the process of investigation and trial. However, such forms of judicial review can be exercised to prevent a miscarriage of justice or to correct some grave errors
that might have been committed by the subordinate courts.
It is, of course, a settled legal proposition that in a case where there is sufficient evidence against the accused, which may establish the charge against him/her, the proceedings cannot be quashed. There can be no quarrel about this Court’s competence to quash criminal proceedings pending before the subordinate courts. However, this power must be exercised sparingly and with circumspection.
The Act of 1986 was enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent manner. However, this statute cannot be used in the present case where the appellant has merely referred to the incidence of pre-marital sex in her statement which was published by a news magazine and subsequently reported in another periodical.
Similarly, Section 509 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. Clearly, this offense cannot be made out when the complainants’ grievance is with the publication of what the appellant had stated in a written form.
Likewise, some of the complaints have mentioned offences such as those contemplated by Section 153A IPC (`Promoting enmity between different groups etc.,’) which have 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.
It is also difficult to accept that the appellant’s remarks amount to `obscenity’ in the context of Section 292 IPC. It is evidently clear that references to sex cannot be considered obscene in the legal sense without examining the context of the reference.
The appellant had not directed her remarks towards any individual or group in particular. All that the appellant did was to urge the societal acceptance of the increasing instances of premarital sex when both partners are committed to each other. This cannot be construed as an open endorsement of sexual activities of all kinds.
While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offense that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of `adultery’ as defined under Section 497 IPC.
It is our considered view that there is no prima facie case of defamation in the present case. Because the key ingredients as settled in section 499 are not satisfied. With regard to the complaints in question, there is neither any intent on part of the appellant to cause harm to the reputation of the complainants nor can we discern any actual harm done to their reputation. In short, both the elements i.e. men’s rea and actus reus are missing.
Most of the complainants are associated with the PMK, a political party which is active in the State of Tamil Nadu. This fact does add weight to the suggestion that the impugned complaints have been filed with the intention of gaining undue political mileage.
There is, of course, some room for complaints to be brought by persons other than those who are aggrieved, for instance when the aggrieved person has passed away or is otherwise unable to initiate legal proceedings. However, in given facts of the present case, we are unable to see how the complainants can be properly described as `persons aggrieved’ within the meaning of Section 199(1)(b) Cr.PC.
It is not the task of the criminal law to punish individuals merely for expressing unpopular views. The threshold for placing reasonable restrictions on the `freedom of speech and expression’ is indeed a very high one and there should be a presumption in favor of the accused in such cases.
The different views are allowed to be expressed by the proponents and opponents. A culture of responsible reading is to be inculcated amongst the prudent readers. Morality and criminality are far from being co-extensive.
Held: The various complaints filed by the appellant do not support or even draw a prima facie case for any of the statutory offences as alleged. Therefore, the appeals are allowed and the impugned judgment and order of the High Court dated 30.4.2008 is set aside. The impugned criminal proceedings are hereby quashed.