S. KHUSHBOO v. KANNIAMMAL & ANR. [2010] INSC 347 (28
April 2010)
Judgement IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 913
of 2010 [Arising out of SLP (Crl.) No. 4010 of 2008] S. Khushboo ... Appellant
Versus Kanniammal & Anr. ... Respondents WITH
Criminal Appeal
914/2010 @SLP (Crl.) No. 6127 of 2008 Criminal Appeal 915/2010 @SLP (Crl.) No.
6257 of 2008 Criminal Appeal 916/2010 @SLP (Crl.) No. 6258 of 2008 Criminal
Appeal 917/2010 @SLP (Crl.) No. 6259 of 2008 Criminal Appeal 918/2010 @SLP
(Crl.) No. 7049 of 2008 Criminal Appeal 919/2010 @SLP (Crl.) No. 6264 of 2008
Criminal Appeal 920/2010 @SLP (Crl.) No. 6277 of 2008 Criminal Appeal 921/2010
@SLP (Crl.) No. 7052 of 2008 Criminal Appeal 922/2010 @SLP (Crl.) No. 7053 of
2008 Criminal Appeal 923/2010 @SLP (Crl.) No. 7050 of 2008 Criminal Appeal
924/2010 @SLP (Crl.) No. 7051 of 2008 Criminal Appeal 925/2010 @SLP (Crl.) No.
4761 of 2008 Criminal Appeal 926/2010 @SLP (Crl.) No. 4772 of 2008 Criminal
Appeal 927/2010 @SLP (Crl.) No. 4767 of 2008 Criminal Appeal 928/2010 @SLP
(Crl.) No. 4763 of 2008 Criminal Appeal 929/2010 @SLP (Crl.) No. 4765 of 2008
Criminal Appeal 930/2010 @SLP (Crl.) No. 4762 of 2008 Criminal Appeal 931/2010
@SLP (Crl.) No. 4764 of 2008 Criminal Appeal 932/2010 @SLP (Crl.) No. 4770 of
2008 Criminal Appeal 933/2010 @SLP (Crl.) No. 4769 of 2008 J U D G M E N T Dr.
B.S. CHAUHAN, J 1. Leave granted in all the cases.
2. The appellant is a well known actress who has approached
this Court to seek quashing of criminal proceedings pending against her. As
many as 23 Criminal Complaints were filed against her, mostly in the State of
Tamil Nadu, for the offences contemplated under Sections 499, 500 and 505 of
the Indian Penal Code, 1860 [hereinafter `IPC'] and Sections 4 and 6 of the
Indecent Representation of Women (Prohibition) Act, 1986 [hereinafter `Act
1986']. The trigger for the same were some remarks made by the appellant in an
interview to a leading news magazine and later on the same issue was reported
in a distorted manner in another periodical. 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 [hereinafter
`Cr.PC.']. The High Court rejected her plea vide impugned judgment and order
dated 30.4.2008. At the same time, in order to prevent the inconvenience of 2
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
judgment, the appellant approached this Court by way of a batch of Special Leave
Petitions.
3. Before addressing the legal aspects of the case before
us, it would be useful to examine the relevant facts. 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. This can be 3 readily
inferred from the statement which was published, a rough translation of which
is reproduced below:
"According to
me, sex is not only concerned with the body; but also concerned with the
conscious.
I could not
understand matters such as changing boyfriends every week. When a girl is
committed to her boyfriend, she can tell her parents and go out with him. When
their daughter is having a serious relationship, the parents should allow the
same. Our society should come out of the thinking that at the time of the
marriage, the girls should be with virginity.
None of the educated
men, will expect that the girl whom they are marrying should be with virginity.
But when having sexual relationship the girls should protect themselves from
conceiving and getting venereal diseases."
These remarks were
published alongside a survey, the relevant extracts of which are stated below:
"Will you marry
a person who had relationship with others? 18% - Yes, 71% - No Is it necessary
to be a virgin till the time of marriage? 65% - Yes, 26% - No The remaining
percentage of people said: Do not know/Cannot say 82% women had given an
opinion that a girl should be a virgin at the time of marriage."
4. 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 4 it had created a sensation all over the
State of Tamil Nadu. This news item also reported a conversation between the
appellant and a correspondent from `Dhina Thanthi', wherein the appellant had
purportedly defended her views in the following manner (rough translation
reproduced below):
"The persons who
are protesting against my interview, are talking about which culture? Is there
anyone who does not know about sex in Tamil Nadu? Is there anyone who does not
know about AIDS? How many men and women do not have sex before marriage? Why
are people saying that after the marriage the husband and wife should be honest
and faithful to each other? One should have confidence in the other, only to
avoid the mistakes from being committed. If the husband, without the knowledge
of the wife, or the wife, without the knowledge of the husband, have sex with
other persons, if a disease is caused through that, the same will affect both
the persons. It will also affect the children. Only because of this, they are
saying like that."
However, 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.
5
5. As outlined above,
the publication of these statements in `India Today' and `Dhina Thanthi' drew
criticism from some quarters and several persons and organisations filed
criminal complaints against the appellant. For instance, the complainant in the
appeal arising out of SLP (Crl) No.
4010 of 2008 has
stated that she is a married woman who is the Treasurer of a District-level
unit of the Pattali Makal Katchi [hereinafter `PMK'], a political party, and is
also involved in social service. She had quoted some parts of the statements
published in `India Today' and `Dhina Thanthi' to allege that the appellant's
interview had brought great shame on her since it had suggested that women of
her profile had engaged in premarital sex. The complainant 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.
6. In the appeal arising out of SLP (Crl.) 4764 of 2008, the
complainant is a male advocate who is a District Secretary of the PMK for Salem
District. In his complaint, there is no direct reference to the news-item
published in `Dhina Thanthi' on 24.9.2005. Instead the complainant has stated
that he found second-hand accounts of the same to be 6 quite shocking since the
appellant had questioned the need for women to maintain their virginity or
chastity. It was alleged that these 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 commission of offences punishable under
Sections 499, 500, 504, 505(1)(b) and 509 IPC read with Section 3 and 4 of Act
1986. Similarly, in the appeal arising out of SLP (Crl.) 6127 of 2008, the
complainant is a lady advocate who has been practicing in the Trichy District
Courts for more than 10 years. She has quoted some portions from the statements
published in `India Today' and `Dhina Thanthi' to submit that the appellant's
acts were punishable under Sections 292, 500, 504, 505(1)(b) and (c), 505(2)
and 509 IPC read with Section 6 of Act 1986.
7. Likewise, in the appeal arising out of SLP (Crl.) 6259 of
2008, the complainant has stated that she is a married woman belonging to a
reputed family and that she is serving as the President of the District Magalir
Association of the PMK (in Thiruvarur) and rendering social service. In her 7
complaint, some parts of the appellant's statements have been quoted to allege
that she had suffered great mental agony and shame since it was suggested that
all women in Tamil Nadu had lost their virginity before marriage. In this
respect, the complainant has alleged that the appellant had committed offences
punishable under Sections 499, 500, 504, 505(1)(b) and 509 IPC read with
Section 6 of Act 1986. It is noteworthy that in most of the other cases filed in
various districts of Tamil Nadu, the complainants are functionaries of the PMK
and similar allegations have been levelled against the appellant. Oddly enough,
one of the complaints had even been filed in Indore, Madhya Pradesh.
8. As mentioned earlier, the appellant approached the High
Court of Madras to seek quashing 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 a trial judge.
The High Court noted that two basic questions were involved in the case.
Firstly, whether the appellant could claim any of the 8 recognised defences
against the allegations of having committed defamation, as contemplated by
Section 499 IPC.
Secondly, whether the
complainants could at all be described as `aggrieved persons' within the meaning
of Section 199 Cr.PC since that was linked to the question of whether the
complaints had been made in a bona fide manner.
The High Court
thought it fit to leave both these questions for consideration by a trial
judge, and in a partial reprieve to the appellant it was directed that all the
criminal proceedings pending against her be consolidated and tried by the Chief
Metropolitan Magistrate at Egmore, Chennai. However, the High Court also
proceeded to record its own views regarding the contents of the appellant's
statements and even made some strong observations condemning the incidence of
premarital sex and live-in relationships.
9. In the proceedings before us, Ms. Pinki Anand, learned
counsel appearing for the appellant, has submitted that the complainants
(respondents in these appeals) were not `persons aggrieved' within the meaning
of Section 199(1)(b) Cr.PC and hence they were not competent to institute
private complaints for the alleged offences. It was stated that the appellant
had made a fair and reasonable comment 9 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 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.
10. In response, Sh. Kanagaraj, Sr. Adv., Sh. S. Gowthaman,
Adv. and Sh. B. Balaji, Adv. appearing for the respondents, submitted that
since the High Court has refused to quash the complaints, this Court should not
interfere either since the complaints require determination of factual
controversies that are best left to be decided by a court of first instance.
They have asserted that the complainants in these cases are mostly women
belonging to Tamil Nadu, who were personally aggrieved by the appellant's
remarks.
10 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
behaviour 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.
11. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
12. In order to decide this case, it will not be proper for
us to either condemn or endorse the views expressed by the appellant. 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 11 errors that might have been committed by the subordinate
courts. [See decision of this Court in: M/s Pepsi Foods 1998 SC 128]. In the
past, this Court has even laid down some guidelines for the exercise of
inherent power by the High Courts to quash criminal proceedings in such
exceptional cases. We can refer to the decision in State of to take note of two
such guidelines which are relevance for the present case :- "(1). Where
the allegations made in the First Information Report or the complaint, even if
they are taken at their face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against the accused.
... (7). Where a
criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and
personal grudge."
13. 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. In M/s
Medchl Chemicals SC 1869, this Court observed that a criminal complaint or a
charge sheet can only be quashed by superior courts in 12 exceptional
circumstances, such as when the allegations in a complaint do not support a
prima facie case for an offence. Similarly, in M/s Zandu Pharmaceutical Works
Ltd.
Court has held that
criminal proceedings can be quashed but such a power is to be exercised
sparingly and only when such an exercise is justified by the tests that have
been specifically laid down in the statutory provisions themselves. It was
further observed that superior courts "may examine the questions of
fact" when the use of the criminal law machinery could be in the nature of
an abuse of authority or when it could result in injustice. In SCC 466, this
Court relied on earlier precedents to clarify that a High Court while
exercising its inherent jurisdiction should not interfere with a genuine
complaint but it should certainly not hesitate to intervene in appropriate
cases. In fact it was observed:
"One of the
paramount duties of the superior courts is to see that a person who is
apparently innocent is not subjected to prosecution and humiliation on the
basis of a false and wholly untenable complaint."
14. There can be no quarrel about this Court's competence to
quash criminal proceedings pending before the 13 subordinate courts. However,
this power must be exercised sparingly and with circumspection. In light of the
position summarized above, we can examine the present case with two
considerations in mind, namely whether the allegations made against the
appellant support a prima facie case for the offences mentioned in the
respective complaints, and whether the complaints were made in a bona fide
manner.
15. Perusal of the complaints reveals that most of the
allegations have pertained to offences such as defamation (Sections 499, 501
and 502 IPC), obscenity (Section 292 IPC), indecent representation of women and
incitement among others. At the outset, we are of the view that there is
absolutely no basis for proceeding against the appellant in respect of some of
the alleged offences. For example, the Act, 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. It would defy logic to invoke the
offences mentioned in this statute to proceed against the appellant, who cannot
be described as an `advertiser' or 14 `publisher' by any means. 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
offence 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.
16. Coming to the substance of the complaints, we fail to
see how the appellant's remarks amount to `obscenity' in the context of Section
292 IPC. Clause (1) to Section 292 states that the publication of a book,
pamphlet, paper, writing, drawing, painting, representation, figure, etc., will
be deemed obscene, if - 7 It is lascivious (i.e. expressing or causing sexual
desire) or 15 7 Appeals to the prurient interest (i.e. excessive interest in
sexual matters), or 7 If its effect, or the effect of any one of the items, tends
to deprave and corrupt persons, who are likely to read, see, or hear the matter
contained in such materials.
In the past, authors
as well as publishers of artistic and literary works have been put to trial and
punished under this section. In the present case, the appellant takes full
responsibility for her statement which was published in `India Today', a
leading news magazine. It would be apt to refer back to the decision of this
Court in Ranjit D.
it was held that if a
mere reference to sex by itself is considered obscene, no books can be sold
except those which are purely religious. It was observed that in the field of
art and cinema, the adolescent is shown situations which even a quarter of a
century ago would be considered derogatory to public morality, but having
regard to changed conditions, the same are taken for granted without in any way
tending to debase or debauch the mind. What is to be considered is whether a
class of persons, not an isolated case, 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 16 aroused in their minds. Even
though the decision in that case had upheld a conviction for the sale of a
literary work, it became clear that references to sex cannot be considered
obscene in the legal sense without examining the context of the reference.
Amal Mitra[1985] INSC
205; , AIR 1986 SC 967, where the Court held that in judging the question of
obscenity, the judge in the first place should try to place himself in the
position of the author and from the viewpoint of the author, the judge should
try to understand what is it that the author seeks to convey and whether what
the author conveys has any literary and artistic value. Judge should thereafter
place himself in the position of a reader of every age group in whose hands the
book is likely to fall and should try to appreciate what kind of possible
influence the book is likely to have on the minds of the reader.
18. There are numerous other decisions, both from India and
foreign country which mandate that `obscenity' should be gauged with respect to
contemporary community standards that reflect the sensibilities as well as the
tolerance levels of an average reasonable person. Owing to the clear 17
formulation on this issue it is not necessary for us to discuss these
precedents at length. In the present case, the appellant has merely referred to
the increasing incidence of pre-marital sex and called for its societal
acceptance. At no point of time appellant described the sexual act or said
anything that could arouse sexual desires in the mind of a reasonable and
prudent reader.
Furthermore, the
statement has been made in the context of a survey which has touched on
numerous aspects relating to the sexual habits of people in big cities. Even
though this survey was not part of a literary or artistic work, it was
published in a news magazine thereby serving the purpose of communicating
certain ideas and opinions on the above- mentioned subject. In the long run,
such communication prompts a dialogue within society wherein people can choose
to either defend or question the existing social mores. It is difficult to
appreciate the claim that the statements published as part of the survey were
in the nature of obscene communications.
19. We must also respond to the claim that the appellant's
remarks could have the effect of misguiding young people by encouraging them to
indulge in premarital sex. This claim is a little far-fetched since the
appellant had not 18 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. If it were to be considered so, the criminal law machinery would
have to take on the unenforceable task of punishing all writers, journalists or
other such persons for merely referring to any matter connected with sex in
published materials. For the sake of argument, even if it were to be assumed
that the appellant's statements could encourage some people to engage in
premarital sex, no legal injury has been shown since the latter is not an
offence.
20.
"Offence" means `an act or instance of offending';
`commit an illegal
act' and illegal means, `contrary to or forbidden by law'.
"Offence"
has to be read and understood in the context as it has been prescribed under
the provisions of Sections 40, 41 and 42 IPC which cover the offences
punishable under I.P.C. or under special or local law or as defined under
Section 2(n) Cr.P.C. or Section 3(38) of the General Clauses Act, 1897 (vide
Proprietary Articles Trade 19 of Enforcement & Ors. AIR 2006 SC 1301).
21. 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 offence 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. At this juncture, we may refer to the decision
given by this Court wherein it was observed that a live-in relationship between
two consenting adults of heterogenic sex does not amount to any offence (with
the obvious exception of `adultery'), even though it may be perceived as
immoral. A major girl is free to marry anyone she likes or "live with
anyone she likes". In that case, the petitioner was a woman who had
married a man belonging to another caste and had begun cohabitation with him.
The petitioner's brother had filed a criminal complaint accusing her husband of
offences under Sections 366 and 368 IPC, thereby leading to the 20 commencement
of trial proceedings. This Court had entertained a writ petition and granted
relief by quashing the criminal trial. Furthermore, the Court had noted that
`no offence was committed by any of the accused and the whole criminal case in
question is an abuse of the process of the Court'.
22. It would also be instructive to refer to a decision of
Wisbech Area Health Authority[1985] UKHL 7; , (1985) 3 All ER 402. In that
case, mother of a teenage girl had questioned the decision of the National
Health Service (NHS) to issue a circular to local area health authorities which
contained guidelines for rendering advice about contraceptive methods to girls
under the age of 16 years. Objections were raised against this circular on the
ground that the health service authorities had no competence to render such
advice and that doing so could adversely affect young children while at the
same time interfering with parental autonomy in the matter of bringing up
children. The majority decision rejected the challenge against the circular by
clarifying that the rendering of advice about contraceptive methods and their
provision by medical professionals did not amount to a sexual offence. Among
the several aspects discussed in 21 that case, it was held that the provision
of information about contraceptive facilities to girls under the age of 16
years could not be opposed on the ground that such information could
potentially encourage more sexual activity by the teenagers. For the purpose of
the present case, this decision supports the reasoning that we must fully
understand the context and the purpose for which references to sex have been
made in any given setting.
23. We now turn to the question whether the appellant's
remarks could reasonably amount to offence of defamation as defined under
Section 499 IPC. In the impugned judgment dated 30.4.2008, the High Court
observed that as to whether the appellant could claim a defence against the
allegations of defamation was a factual question and thus would be decided by a
trial Court. However, even before examining whether the appellant can claim any
of the statutory defences in this regard, the operative question is whether the
allegations in the impugned complaints support a prima facie case of defamation
in the first place. It is our considered view that there is no prima facie case
of defamation in the present case. This will become self- evident if we draw
attention to the key ingredients of the 22 offence contemplated by Section 499
IPC, which reads as follows:
"499. Defamation.-
Whoever, by words either spoken or intended to be read, or by signs or by
visible representations, makes or publishes any imputation concerning any
person intending to harm, or knowing or having reason to believe that such
imputation will harm, the reputation of such person, is said, except in the
cases hereinafter expected, to defame that person.
Explanation 1. - It
may amount to defamation to impute anything to a deceased person, if the
imputation would harm the reputation of that person if living, and is intended
to be hurtful to the feelings of his family or other near relatives.
Explanation 2. - It
may amount to defamation to make an imputation concerning a company or an
association or collection of persons as such.
Explanation 3. - An
imputation in the form of an alternative or expressed ironically, may amount to
defamation.
Explanation 4.- No
imputation is said to harm a person's reputation, unless that imputation
directly or indirectly, in the estimation of others, lowers the moral or
intellectual character of that person, or lowers the character of that person
in respect of his caste or of his calling, or lowers the credit of that person,
or causes it to be believed that the body of that person is in a loathsome
state, or in a state generally considered as disgraceful. ..."
(emphasis supplied)
The definition makes it amply clear that the accused must either intend to harm
the reputation of a particular person 23 or reasonably know that his/her
conduct could cause such harm. Explanation 2 to Section 499 further states that
`It may amount to defamation to make an imputation concerning a company or an
association or collection of persons as such.'
24. 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. mens rea and actus reus are missing. As
mentioned earlier, the appellant's statement published in `India Today' (in
September 2005) is a rather general endorsement of premarital sex and her
remarks are not directed at any individual or even at a `company or an
association or collection of persons'. It is difficult to fathom how the
appellant's views can be construed as an attack on the reputation of anyone in
particular. Even if we refer to the remarks published in `Dhina Thanthi' (dated
24.9.2005) which have been categorically denied by the appellant, there is no
direct attack on the reputation of anyone in particular. Instead, the purported
remarks are in the nature of rhetorical questions wherein it was asked if
people in Tamil Nadu were not aware of the incidence of 24 sex. Even if we
consider these remarks in their entirety, nowhere has it been suggested that
all women in Tamil Nadu have engaged in premarital sex. That imputation can only
be found in the complaints that were filed by the various respondents. It is a
clear case of the complainants reading in too much into the appellant's
remarks.
25. This takes us to the question of whether the impugned
complaints were made in a bona fide manner. As we have already noted, 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. It may be reiterated here that in respect of the offence of
defamation, Section 199 Cr.PC mandates that the Magistrate can take cognizance
of the offence only upon receiving a complaint by a person who is aggrieved. This
limitation on the power to take cognizance of defamation serves the rational
purpose of discouraging the filing of frivolous complaints which would
otherwise clog the Magistrate's Courts. 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 25 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.
As explained earlier,
there was no specific legal injury caused to any of the complainants since the
appellant's remarks were not directed at any individual or a readily Commissioner
of Excise, Kerala & Ors., (2000) 7 SCC 552, this Court observed as under:
"The `person
aggrieved' means a person who is wrongfully deprived of his entitlement which
he is legally entitled to receive and it does not include any kind of disappointment
or personal inconvenience. `Person aggrieved' means a person who is injured or
one who is adversely affected in a legal sense."
26. We can also approvingly refer to an earlier decision of
1972 SC 2609. In that case a controversy had arisen after `The Hindu', a
leading newspaper had published a report about a resolution passed by the
Dravida Kazhagham, a political party, in its conference held on January 23-24,
1971. Among other issues, the resolution also included the following words:
"It should not
be made an offence for a person's wife to desire another man."
26 The Hindu, in its
report, gave publicity to this resolution by using the following words:
"The Conference
passed a resolution requesting the Government to take suitable steps to see
that coveting another man's wife is not made an offence under the Indian Penal
Code."
A complaint under
Sections 499, 500 and 501 IPC was filed in response to this report. Like the
present case, the Court had to consider whether the complainant had the proper
legal standing to bring such a complaint. The Court did examine Section 198 of
the Code of Criminal Procedure, 1898 (analogous to Section 199 of the Cr.PC.
1973) and observed that the said provision laid down an exception to the
general rule that a criminal complaint can be filed by anyone irrespective of
whether he is an "aggrieved person"
or not. But there is
a departure from this norm in so far as the provision permits only an
"aggrieved person" to move the Court in case of defamation. This
section is mandatory and it is a settled legal proposition that if a Magistrate
were to take cognizance of the offence of defamation on a complaint filed by
one who is not an "aggrieved person", the trial and conviction of an
accused in such a case by the Magistrate would be void and illegal. This Court
further noted that the news-item in question did not mention any individual
person nor did it contain any 27 defamatory imputation against any individual.
Accordingly, it was held that the complainant was not a `person aggrieved'
within the meaning of Section 198 CrPC, 1898.
The Court also took
note of Explanation 2 to Section 499 IPC which contemplates defamation of `a
company or an association or any collection of persons as such'.
Undoubtedly, the
explanation is wide but in order to demonstrate the offence of defamation, such
a collection of persons must be an identifiable body so that it is possible to
say with precision that a group of particular persons, as distinguished from the
rest of the community stood defamed. In case the identity of the collection of
persons is not established so as to be relatable to the defamatory words or
imputations, the complaint is not maintainable. In case a class is mentioned,
if such a class is indefinite, the complaint cannot be entertained.
Furthermore, if it is not possible to ascertain the composition of such a
class, the criminal prosecution cannot proceed.
While deciding the
case, this Court placed reliance on Express Newspaper Ltd. [1944] UKHL 1;
(1944) 1 ALL ER 495, wherein it had been held that it is an essential element
of the cause of action for defamation that the words complained of should be
published "of the complainant/plaintiff". Where he is 28 not named,
the test would be whether the words would reasonably lead people acquainted
with him to the conclusion that he was the person referred to.
In fact, it is the
reputation of an individual person which must be in question and only such a
person can claim to have "a legal peg for a justifiable claim to hang
on".
27. Coming back to the facts of the present case, the
complainants have alleged defamation in respect of imputations against the
character of Tamil-speaking women, which could perhaps be viewed as a class of
persons.
However, we have
already explained, the appellant's remarks did not suggest that all women in
Tamil Nadu have engaged in premarital sex. In fact her statement in `India
Today' did not refer to any specific individual or group at all. If we refer to
one of the questions asked as part of the concerned survey, one of the answers
shows that 26% of the people who responded to the same did not think that it
was necessary for women to retain their virginity till the time of marriage.
Clearly the appellant was not alone in expressing such a view, even though it
may be unpopular or contrary to the mainstream social practices. Even if it
were assumed that the news-item carried in `Dhina Thanthi' caused mental agony
to some sections of women in Tamil 29 Nadu, there is no prima facie case for
any offence. What is interesting to note is that not all of the complainants
are women, and in fact almost all the complainants are associated with a
particular political party.
28. We are of the view 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, we are therefore
inclined to grant the relief sought by the appellant. In such cases, the proper
course for Magistrates is to use their statutory powers to direct an
investigation into the allegations before taking cognizance of the offences
alleged. 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 favour of the accused in such cases.
It is only when the complainants produce materials that support a prima facie case
for a statutory offence that Magistrates can proceed to take cognizance of the
same. We must be mindful that the initiation of a criminal trial is a process
which carries an implicit degree of coercion and it 30 should not be triggered
by false and frivolous complaints, amounting to harassment and humiliation to
the accused.
29. Even though the constitutional freedom of speech and
expression is not absolute and can be subjected to reasonable restrictions on
grounds such as `decency and morality' among others, we must lay stress on the
need to tolerate unpopular views in the socio-cultural space. The framers of
our Constitution recognised the importance of safeguarding this right since the
free flow of opinions and ideas is essential to sustain the collective life of
the citizenry. While an informed citizenry is a pre-condition for meaningful
governance in the political sense, we must also promote a culture of open
dialogue when it comes to societal attitudes. Admittedly, the appellant's
remarks did provoke a controversy since the acceptance of premarital sex and
live-in relationships is viewed by some as an attack on the centrality of
marriage. While there can be no doubt that in India, marriage is an important
social institution, we must also keep our minds open to the fact that there are
certain individuals or groups who do not hold the same view. To be sure, there
are some indigenous groups within our country wherein sexual relations outside
the marital setting are accepted as a normal occurrence.
31 Even in the
societal mainstream, there are a significant number of people who see nothing
wrong in engaging in premarital sex. Notions of social morality are inherently
subjective and the criminal law cannot be used as a means to unduly interfere
with the domain of personal autonomy.
Morality and
Criminality are not co-extensive. In the present case, the substance of the
controversy does not really touch on whether premarital sex is socially
acceptable. Instead, the real issue of concern is the disproportionate response
to the appellant's remarks. If the complainants vehemently disagreed with the
appellant's views, then they should have contested her views through the news
media or any other public platform. The law should not be used in a manner that
has chilling effects on the `freedom of speech and expression'. It would be apt
to refer to the following observations made by this Court in which spell out
the appropriate approach for examining the scope of `reasonable restrictions'
under Art. 19(2) of the Constitution that can be placed on the freedom of
speech and expression:- " ... Our commitment of freedom of expression
demands that it cannot be suppressed unless the situations created by allowing
the freedom are pressing and the community interest is endangered. The
anticipated danger should not be remote, conjectural or far-fetched. It should
32 have proximate and direct nexus with the expression. The expression of
thought should be intrinsically dangerous to the public interest.
In other words, the
expression should be inseparably locked up with the action contemplated like
the equivalent of a `spark in a powder keg'.
The Court further
held:
" ... The
standard to be applied by the Board or courts for judging the film should be
that of an ordinary man of common sense and prudence and not that of an out of
the ordinary or hypersensitive man ... The different views are allowed to be
expressed by proponents and opponents not because they are correct, or valid
but because there is freedom in this country for expressing even differing
views on any issue. ... Freedom of expression which is legitimate and
constitutionally protected, cannot be held to ransom by an intolerant group of
people. The fundamental freedom under Article 19(1)(a) can be reasonably
restricted only for the purposes mentioned in Article 19(2) and the restriction
must be justified on the anvil of necessity and not the quicksand of
convenience or expediency.
Open criticism of
government policies and operations is not a ground for restricting expression.
We must practice tolerance of the views of others. Intolerance is as much
dangerous to democracy as to the person himself."
30. Thus, dissemination of news and views for popular
consumption is permissible under our constitutional scheme.
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. An expression of opinion in
favour of non-dogmatic and non- 33 conventional morality has to be tolerated as
the same cannot be a ground to penalise the author.
31. Before saying omega, it is necessary for us to point out
certain unwarranted developments that have taken place ever since the matter
was heard till date. In fact, during the course of hearing, certain queries
were put to the learned counsel appearing for parties so as to clarify the
legal issue involved in the matter but unfortunately, those queries have been
highly misunderstood not only by media but also by common man. As a result
thereof, we have been flooded with several letter petitions making a prayer for
review of the order passed by us. It is pertinent to mention here that no order
was passed by us and only during the course of hearing, we had either given
some instances or put some questions to the learned counsel which were answered
by them. Thus, this hyper active attitude of the common man was, indeed, not
called for. Some have even gone to the extent of telling us that we should have
known the Indian mythology before putting such question. Thus, whatever we have
said during the course of the hearing should be reviewed. We fail to understand
how such an attitude could be adopted by those learned persons who were
involved in sending various letter petitions to us.
34 Admittedly, all
those persons who have sent letters to us were not present on that particular
date but must have gathered information from the print and electronic media
which evoked their sentiments to such an extent that they prayed for review.
32. It is, therefore, not only desirable but imperative that
electronic and news media should also play positive role in presenting to
general public as to what actually transpires during the course of the hearing
and it should not be published in such a manner so as to get unnecessary
publicity for its own paper or news channel. Such a tendency, which is indeed
growing fast, should be stopped.
We are saying so as
without knowing the reference in context of which the questions were put forth
by us, were completely ignored and the same were misquoted which raised
unnecessary hue and cry.
33. We hope and trust in future, they would be little more
careful, responsible and cautious in this regard.
34. In conclusion, we find that the various complaints filed
against 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
35 impugned judgment and order of the High Court dated 30.4.2008 is set aside.
The impugned criminal proceedings are hereby quashed.
............................CJI.
.............................
J.
(DEEPAK VERMA)
............................. J.
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