S.
Khushboo Vs. Kanniammal & ANR. [2010] INSC 347 (28 April 2010)
Judgment
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. 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, 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) 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)
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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