S. Khusboo v. Kanniammal
Adwita Arya
Chotanagpur Law College Ranchi
This Case Commentary is written by Adwita Arya, a Third-Year Law Student of Chotanagpur Law College Ranchi
Introduction
The case has brought down the major significance of the battles between the law and morality concept by proving leniency approval in the ambit of Article 21 and protection of freedom of speech under Article 19(1) (a) by addressing the misuse of legal proceedings in curtailing the fundamental rights of freedom to speech in the favour of appellant. The landmark judgment over the stigma of pre-marital sex, living relationships, etc. in Indian cultural society was considered to be a revolutionary decision by emphasizing the issues of free speech and criteria to check the obscenity of any statement. Court has taken the steps not only in the appellant’s favour in the expression of her views on pre-marital sex and live-in relationships by which she was held for criminal charges but also provided legal recognition to the evolving nature of personal rights and relationships in modern India. The value of the liberal interpretation in this case distinguished and provided restrictive measures of the legal system from becoming a tool for enforcing rigid societal moralities.
Facts
The appeal was made for quashing multiple criminal proceedings under Sections 499, and 500, of Indian Penal Code 1860 along with Sections 4 and 6 of the Indecent Representation of Women(Prohibition) Act 1986, charged against the well-known actress S. Khusboo.
Before assuming the legal aspects that were charged against the appellant the examination of how the initiation began was a foremost step, In September 2005, ‘India Today’ a survey was conducted by the news magazine on the subject of sexual habits of people residing in bigger cities of India. In such a survey one issue was discussed about the increment of pre-marital sex. Information based on such surveys was gathered by the magazine which includes the view of the appellant.
In the context of such a survey the view of the appellant was recorded and later published in which she expressed her personal opinions, pointed out the increase of pre-marital sex and live-in relationships, and called for the societal acceptance of the same. The statement made for the acceptance of pre-marital sex and live-in relationships outraged the multiple complaints on an individual basis or community for promoting enmity, hatred, ill will, violation of decency and sentiments also the defamation of the culture of the people of Tamil Nadu.
For such major attacks of an allegation of defamation, the appellant knocked on the doors of Apex court in arguments that the Right to free speech was being curtailed and that the complaints were an abuse of the legal process.
Issues
1. Whether the appellant’s statement on pre-marital sex and live-in relationships were protected under Article 19(1) (a) of the Constitution of India i.e. Right to freedom of speech and expression.
2. Whether her marks defamed the people of Tamil Nadu or injured their collective moral sentiments.
3. Whether the remarks made by Khusboo amounted to obscenity or an attack on public decency under the Indian Penal Code.
Legal provisions
· Article 19(1) (a) of the Indian Constitution guarantees the fundamental rights to freedom of speech and expression
· Section 499 of the Indian Penal Code (IPC) defines defamation as any such statement causing injury to the person’s reputation by publishing or with the knowledge that such publication is going to harm the reputation.
· Section 505 IPC deals with statements made with the intent to incite a class or community to commit an offense.
· Section 292 of the IPC defines obscenity and its punishment for publicly exhibiting obscene objects.
These provisions were discussed in this case for which the appellant was charged.
Judgment
The judgment made by the three judges’ bench in favour of the appellant by quashing the impugned judgment of Tamil Nadu and numerous frivolous complaints against the appellant stated crucial measures, prior one was that there was not any prima facie evidence indulged to claim that the statements made by the appellant were defamatory.
Cases implanted with the mala-fide intention, cases made by the respondents have no hands and legs because the statement made by the appellant is not defaming a particular or against a group of people, community, or caste. Her aim on the other hand to support the social issue by putting a mark over old orthodox stigmas and norms.
By the references of many cases and one of the cases like Ranjit D. Udeshi v. State of Maharashtra, the observation was made that the word sex cannot fall under the ambit of “obscene” and not even the conduct which was used is named as obscene. The obscenity of a statement should be measured based on rational thinking and current community standards. Mere references to pre-marital sex or a live-in relationship cannot be stated as obscene because due to this statement, they are not an increase in the sexual desire of a rational person.
According to Section 292 of IPC, a statement is said to be obscene when the statement is lascivious or appeals to prurient interest. Thus, the court observed that the charge under section 292 of IPC has failed to fulfil the requirement to be held, with reference to the case Samaresh Bose v. Amal Mitra.
The court further stated by differentiating morality and law that morality and criminality are far from being co-extensive. An expression of non-dogmatic and non-conventional morality has to be tolerated as the same cannot be a ground to penalize the author.
Before proceeding with any criminal charges, the intention of Mens Rea or Actus reus is missing among the frivolous charges imposed against the appellant.
In the context of defamation, the court held that the statement made under the publication by the newspaper is a general endorsement of pre-marital sex and her remarks are not directed at any individual or even at a company or any association or collection of persons.
Direct attack on anyone’s reputation was missing, thus the question raised on complaints in the ambit of bona fide intentions or not. The court found that the impugned complaints had been filed to gain undue political mileage.
Section 199(1) (b) of IPC also interpreted which defines the “aggrieved person” and cases can strictly be filed on behalf of the aggrieved person only to discourage the filing of frivolous complaints.
So, there was no specific legal inquiry caused to any of the complainants since the appellant’s remarks were not directed at any individual or a readily identifiable group of people.
The Rights of expression and speech granted under Article 19(1)(a)
of the Indian constitution the court stated that the appellant’s statements were opinions on a matter of public interest, and these opinions could not be considered defamatory without clear evidence of harm to individual reputations. The right to free speech under Article 19(1)(a) includes the right to express unpopular or controversial views, provided they do not incite violence or disrupt public order.
The judgment made by the court in the context of Protection from frivolous complaints, the evolution of social stigmas, and freedom of speech were vitally concluded in the favour of the appellant as well as a liberal approach towards societal development.
Challenges
Now, coming to the challenges that are in continuity due to India being a cultural country in which sex beyond marriage is still the biggest thing contrary to moral and civic values.
Also, the challenges have not restrictive towards the morality and law differences, they also reach upon various offenses like domestic violence, as seen in a recent spooky case where a woman living with her boyfriend Aftab Poonawala, was chopped in 36 pieces on May 18, 2022 and the case came to public attention on November 11. This case has marked the misuse of rights and privileges granted to citizens which resulted in such inhuman activity.
And many cases where predation of young mature girls is in concern the offenders are finding loopholes to diminish the values that have been made under the laws. The judgment has cleared the way to a liberal mindset but society is still approaching the stigma and some offenders are destroying the intention of such revolution by creating menace and the distinction between safety and liberty. The doors opening to suicide due to mental agony among the young generation after separation has been seen in various reports.
The young generation is delicate and vulnerable to such new changes, although enhancing sexual liberty does not fall under the ambit of an offense the impact is indirect and severe towards the younger generation which is the main predation, lack of legal protection, and financial assistance the purpose is separating the safety as well as a necessity towards the development. The children born out of such relationships are labelled as illegitimate and will never be respected in society as well under the permit of legal assistance.
Women are prone to more risks of unwanted pregnancies, separation, and violence due to such changes in society.
India being a moral-abiding country, is slow in acceptance of such liberal changes, liberty is a lengthy concept that can be aware by the prudent class of society and the rest are too vulnerable classes to accept. The gap between such thought processes creates menace and the birth of crimes and disturbances.
Conclusion
The case has a significant conclusion which not only brought the relief from allegations charge to the appellant but also interpreted the law in various norms, firstly it has concluded that Article 19(1)(a) has featured for the protection of individual’s rights to speech which also includes the expression which was made to the alleged offenses and the meaning of defamation was also stretched under the ambit of Section 499 which means that defamation is an offense inclined towards any “aggrieved person” and here aggrieved person was not proved by the court. Defamation cannot be charged based on personal opinion and the court also stated the fact by quashing the impugned judgment of the High Court as well as frivolous complaints that talking about pre-marital sex as well as a living relationship is not an amount of obscenity or an attack on public decency under the alleged charges.
By quashing the criminal charge against the appellant, the court has paved the way for a more tolerant understanding of personal relationships outside the traditional framework of marriage. The judgment is a reminder that laws must evolve with changing societal norms, and individual autonomy in matters of personal relationships should be respected as long as it does not infringe upon the rights of others.
While morality and safety are in the way of hindering the purpose behind such liberal interpretation by offenses going on these days, guardianship is consciously inclined to its enforcement and betterment of society.
References
· https://jlrjs.com/wp-content/uploads/2023/03/35.-Om-Chandak.pdf
· https://indiankanoon.org/doc/1327342/