While quashing criminal proceedings arising from 23 complaints against actor Kushboo, the Supreme Court has sent a strong signal that freedom of expression will not be allowed to be held hostage by those who indulge in smear campaigns or exploit the legal process to gain political or personal mileage. The slew of criminal complaints, filed mainly in Tamil Nadu in several places, relate to her comments published in a magazine in 2005. Noting the increasing incidence of pre-marital sex, Ms Kushboo sensibly cautioned girls to take adequate precautions to avoid unwanted pregnancies and sexually transmitted diseases. Her remarks were perversely interpreted by bigots as a licence for promiscuity and, believe it or not, as an affront to the dignity of Tamil women. The offences the actor was charged with included criminal defamation and indecent representation of women. The cases clearly had no legal merit, and the three-member Supreme Court bench did a real service to freedom of expression by addressing in some detail the issues raised by the petitioners before showing how hollow they were.
With respect to the charge of criminal defamation, the Court held that Ms Kushboo's remarks did not reflect any intent to harm and did not cause actual harm (neither mens rea nor actus reus). Further, the complainants were not ‘aggrieved persons' under Section 199 of the Code of Criminal Procedure. As for the charges under the Indecent Representation of Women (Prohibition) Act 1986, the Court concluded that it would “defy logic” to use against Ms Kushboo a statute “enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent manner.” Notions of morality, it pointed out, are inherently subjective and the criminal law cannot be used to interfere with the domain of personal autonomy. The Court extensively cited its own landmark judgment in S. Rangarajan v. P. Jagjivan Ram & Ors — which underlined the importance of protecting freedom of expression in the face of intolerance. Coincidentally, in a double blow to the bigots, the Madras High Court threw out on the same day all criminal proceedings against actor and director Suhasini Manirathnam, who was targeted for apologising, on behalf of Tamils, to Ms Kushboo for the treatment meted out to her. While two upstanding actors have been vindicated, it is shocking that the cases against them have dragged on for half a decade — making the very process the punishment. Judges, particularly those in the lower courts, must apply their mind to the alleged offences rather than take summary cognisance of them. Vexatious litigation is an abuse of the judicial process and the higher judiciary needs to come down severely on it.