“We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.”
John Stuart Mill
A century-and-a-half ago, John Stuart Mill voiced his concern for free speech. The Supreme Court in Kushboo's case has endorsed these ideals.
Ms Kushboo's case is a tribute to one of the most sacrosanct rights of a democracy and to a vibrant dynamic society. The Supreme Court judgment reaffirms our faith in liberty: liberty of ideas; liberty of speech and expression; liberty of opinion; liberty of divergence; liberty of dissension, and liberty of circulation. Benjamin Franklin said: “When men differ in opinion, both sides ought equally to have the advantage of being heard by the public.” It gives a blow to the power-hungry, aggressive sections of society who claim to be the defenders of faith.
Are we a closeted society where even the mention of the word sex raises eyebrows? Sex is not synonymous with obscenity or indecency. In Udeshi's case in 1965, Justice Hidayatullah held: “Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral.”
Oddly enough, although many may think the judgment is an endorsement of deviant behaviour, it is not. Ms Kushboo did not advocate premarital sex or live in relationship. She only advocated that society should not be hypocritical and pretend that this does not happen. She advocated health safety measures where it did happen and voiced her concern.
What the Supreme Court of India's latest judgment does uphold is:
1. 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.
2. Although the survey on which Ms Kushboo was invited to comment, was not a literary work, it was published in a news magazine, thereby serving the purpose of communicating certain ideas and opinions on the above-mentioned subject. The survey touched numerous aspects relating to sexual habits of people in big cities.
3. The statements were not defamatory. Ms Kushboo'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 her views can be construed as an attack on the reputation of anyone in particular.
4. There was no intention on Ms Kushboo's part to hurt anyone's sentiments. There was neither any intent to cause harm to the reputation of people nor any actual harm done to their reputation.
5. The impugned complaints were made by complainants associated with a political party being PMK, which is active in the State of Tamil Nadu. This adds weight to the suggestion that complaints were made to gain undue political mileage.
6. 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 identifiable group of people.
7. The complaints made were frivolous in nature since the comments did not injure anyone in particular.
8. The institution of the numerous complaints against Ms Kushboo was done in a malafide manner. In order to prevent the abuse of the criminal law machinery the complaints were quashed. 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 cognisance of the same.
9. One must be mindful that the initiation of a criminal trial is a process that carries an implicit degree of coercion and it should not be triggered by false and frivolous complaints, amounting to harassment and humiliation to the accused.
When we will turn the pages of history, this judgment of Justice B.S. Chauhan for the three Judge Bench will stand out for the high values it protects, which are integral to democracy and civil society.
(Pinky Anand is a Senior Advocate, Supreme Court of India.)
