by Pinky Anand
The guiding rationale seems to have its roots in the age-old law enumerating that ‘my right stops where the other’s begins’. Various judgments of the Supreme Court have consistently held that no individual may act in a way to denigrate or subjugate another’s right to reputation.
The law of defamation can be broadly seen under two heads. One, libel, which has a physical representation (in the form of pictures or writings) of the harm-causing content, making it permanent in nature. And, two, slander, which is mostly transient in character, and heard; in essence through spoken word or gestures.
In the Indian context, defamation is classified as either criminal or as a tort.
Under Section 499, the definition of defamation is subject to ten exceptions. Section 500 provides for imprisonment for up to two years for the offence. The offence is non-cognizable and bailable, and the accused can be taken into custody with only a warrant. Also, a complaint needs to be filed with the magistrate for action.
The Constitution of India has always aimed to protect and uphold human dignity. The right to reputation comes under the umbrella of rights guaranteed under the Constitution and acts as an enabler to other dignities promised under the law of the land.
Although touted as property, the right to dignity is not as simple as material possession; it encompasses social and territorial values and cannot just be weighed in monetary terms. It is often true that an injury to reputation is as painful, or even more, than actual physical injury. Unlike other crimes, insult or rumour does not leave traceable, tangible evidence behind, but it can cause as much—if not more—hurt than physical injury. In such circumstances, can decriminalization of the law of defamation be feasible? Is it possible to compensate injury and insult with money and be satisfied with it?
In India, defamation was an idea that was given legislative sanctity by Lord Macaulay in 1837. The law of defamation was initially created to protect the British Raj and its officers from harm. The offence of defamation was at that time a tool in the hands of the colonizers to aid and abet their interests. It was a net used to catch all activities by Indians that were not conducive to their own benefit. Meetings, pamphlets and activities that were suspected of being anti-British were all tried under the law and ruthlessly punished.
Despite having a less-than-noble beginning, the law of defamation was given a place in our newly free nation post independence. However, it gave rise to a new question: When the interests of the new republic were not in conflict with the interest of its citizens, did the law of defamation still require to be criminalized?
In India, defamation may have civil or criminal connotations, but the laws controlling it remain the same, regardless of the situation. The claimant is required to prove that a person’s reputation has been injured by statements. Once it is proved that there was some damage to reputation, it lies with the defence to prove that the case is covered under one of the ten exceptions provided under Section 499.
The exceptions offered are wide, and protection is extended for instances involving true statements, public good and opinion in good faith. Despite these exceptions, it is prudent to keep in mind that the freedom of speech and expression protected under the Indian Constitution is subject to reasonable restriction, including protection from defamation.
International law recognizes defamation as a wrong towards the public at large. The Universal Declaration on Human Rights of 1948, under Article 12, clearly stipulates that no one shall be subjected to an attack on their honour and reputation.
The two cases we discuss here have defined the parameters of the law of defamation, exploring the right to free speech and expression, and the point at which it transverses reasonability and lands in the domain of criminality. The case of the south Indian actress Khushboo, emanating from a spurt of defamation cases, stands out as a milestone judgment on the freedom of speech, constitutionality versus constitutional morality, and a host of other directly and indirectly related issues.
Khushboo v. Kanniammal
In a country where people are frequently dumped into the criminal machinery for exercising their fundamental right to freedom of speech and expression, where people are condemned for speaking against the ‘majoritarian belief’ and where people are highly intolerant when it comes to morality, the case of Khushboo v. Kanniammal3 stands out as an anomaly.
As a lawyer, I often wonder about the juxtaposition of criminal defamation and morality. I had the honour of representing the actress in this case and had the opportunity to study first-hand the matter in depth vis-à-vis what was known as part of the public perception. Morality is a subjective concept, and what is immoral may be perfectly moral for some other person or group. The perceived immorality by one dominant group cannot be labelled the norm for all or as an offence under the law.
Under Article 21, an adult woman has unrestricted liberty to marry anyone she likes and live with anyone she wants. The Supreme Court, in Lata Singh v. State of UP & Anr,4 has held that a live-in relationship between two consenting adults does not amount to any offence. There exists a difference between the law and morality, and even if something is assumed to be immoral, it may still be legal.
The courts do not exist for moral policing or to impose moral standards upon people. It is up to the people themselves to choose whether they want to live with someone outside of wedlock or enter into a customary legal relationship of marriage. Cases such as Shreya Singhal v. Union of India5 have held that laws must give a citizen ‘fair warning’, i.e., a reasonable person should know that a certain sort of conduct is prohibited. This argument is perfectly summed up by the former justice of the US Supreme Court Oliver Wendell Holmes in his seminal 1897 article, ‘The Path of the Law’: ‘It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from the blind imitation of the past.’
The events that sparked off the case arose in September 2005, when India Today magazine conducted a survey on the sexual habits of people residing in the bigger cities of India. Premarital sex was one of the issues discussed, and views were gathered from the different segments of society. Khushboo, a south Indian actress, opined on the issue, saying that the incidence of premarital sex was an increasing phenomenon: ‘According to me, sex is not only concerned with the body, but also concerned with the conscious . . . Our society should come out of the thinking that at the time of the marriage, the girls should be with virginity (sic) . . . But when having sexual relationship the girl should protect themselves (sic) from conceiving and getting venereal diseases.’
This statement was then covered by another Tamil daily magazine, Dina Thanthi, attracting several conversations on the matter. The actress vehemently defended herself by saying: ‘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, [either] 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 (sic).’
The repercussions of this statement unravelled in the form of as many as twenty-one criminal complaints being filed against the actress under Sections 499, 500, 509, 153-A and 292 of the IPC, read with Sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986, in various separate jurisdictions. The ignominy of the situation was that Khushboo was made to run from pillar to post in courts spread across several territories. To get respite from this constant prosecution, she approached the
High Court of Madras to quash these complaints. Despite clear indications that this was a matter of political victimization, the high court refused to step in and directed the chief judicial magistrate to combine all the complaints.
The high court’s judgment unfortunately is a reflection of the exact patriarchal bent of mind that large sections of society are today up in arms against. The court expounded on how the actress was educated only till class eight, that she did not have a world view except her knowledge of cinema and how she could in no way be an expert on sexology. It went on to state:
In India, chastity and love are explicitly regulated, that is why, women are assigned an elevated position in society and they are ordinarily not approachable by men except through legal means viz., marriage. In the other situation, where love and chastity are implicitly promoted; but not regulated, one could witness, women’s position is subject to the utter tedium of placing themselves at the disposal and protection of their men. One may wonder as to which one of these two sets of conditions are apt to enhance love and chastity. Incidentally, it is notable that the so called open or permissive societies, blindly lauded by the petitioner, are ipso facto incapable of promoting conditions for any deep and intense love relationships. Their conditions lead to waywardness and wantonness, in the process of seeking transient affairs, if not while indulging in momentary and lustful pleasures.
Dating begins at a very young age and every socially well-adjusted youngster is expected to have several girlfriends and boyfriends by a certain age. Use of condoms by school going children has become a common phenomenon there. Thus, those who grow up in the West are weaned on sex in both subtle and not so subtle ways. That is why, to many Westerners, sex can be worthwhile as long as it embodies the sweetness mutually attainable by lovers. Individuals of opposite sex there prefer the desirability and enjoyability of living together in mutual love and comfort to the constant annoyance and boredom of living as singles. They aim at maximising enjoyment of life. In quite contrast thereto, in Indian society, sex is regarded as something inexorably desirable in itself only through marriage and one would pray while entering conjugal life that the marital relationship should continue even after death in the world of souls. If such social set-up strengthened by moral and ethical ideology is criticized, it would result in adverse impact both emotional and consequential.
After this, Khusboo and her lawyers approached me to move the Supreme Court. It is in rare cases that the apex court quashes complaints. After vociferous arguments, the court held that Khushboo’s views and opinions did not qualify as defamatory under Section 499 of the IPC.
The entire furore is important to examine as it raises questions about our capacity to tolerate views that are not in consonance with those of the mainstream. A mere reference to the increasing incidence of premarital sex and the call for its societal acceptance was challenged on the grounds of it being beyond the protection of the freedom of speech and expression, in spite of it being defamatory in nature, interfering in the domain of personal autonomy and insulting the modesty of a woman or an identifiable group of women.
On observing the chronology of the case, one may infer that the whole controversy revolves around two debates, namely, the societal acceptance of premarital sex and the disproportionate response to the remarks.
In relation to the first point of debate on the societal acceptance of premarital sex, the Supreme Court, after deliberations, concluded that though it is true that a majoritarian view in our society restricts sexual contact between partners, there is no statutory authority that declares consensual sex (with the exception of adultery) to be an offence outside the marital setting. The court recognized that the substance of the controversy did not touch on the issue of whether premarital sex is socially acceptable or not. The real concern was the disproportionate response people had to the actress’s remarks.
It was held that Khushboo neither intended to cause harm to the reputation of complainants, nor could any actual harm be discerned from her remarks. She had not suggested that all women in Tamil Nadu engage in premarital sex but had merely addressed how premarital sex was viewed in the society at the time.
The Khushboo judgment not only brings to light the totalitarian face of the majoritarian belief but preserves the confidence of rational people in the judiciary.
The judgment, rendered by Justice B.S. Chauhan, which upheld the sanctity of thoughts protected under Article 19(1)(a) of the Indian Constitution, states: ‘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” . . . We must lay stress on the need to tolerate unpopular views in the sociocultural space . . . we must also promote a culture of open dialogue when it comes to societal attitudes.’
In this case, the court stated that no prima facie case could be drawn for any statutory offences asserted by the original complainants. With respect to the allegation of defamation charges, it was held that it was amply clear that the accused must intend to harm the reputation of a particular person, or should have reasonably known that his or her act would cause such harm. On analysing the facts, it was crystal clear that the actress did not intend any such thing to the reputation of the complainant and, thus, both mens rea and actus reas were missing.
The court also went on to state: ‘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 Dina Thanthi. . . there is no direct attack on the reputation of anyone in particular . . . 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 . . . It is a clear case of the complainants reading in too much into the appellant’s remarks.’
The harassment to the actress was so clear that the Supreme Court went on to opine that the criminal complaints filed were mala fide in nature, and that in order to prevent the abuse of the criminal law machinery, magistrates, in the future, should use their statutory power to direct an investigation into the allegation before taking cognizance of the offence.
This case also launched an entire media debate on the morality of a live-in relationship. In a society like ours, the idea that live-in relationships existed was difficult to palate. Things went from bad to worse when a revered actress, in whose name temples had been built in the southern territories of India, voiced her stance openly and defended it too. I personally am not in favour of live-in relationships; I find them transient and unstable, but I did support Khushboo’s right to an idea and opinion. What she said was the truth and she had stated it, to the ire of many. It was also such an aberration because Khushboo herself is happily married with two children. It was heartening to see the Supreme Court leave behind patriarchal ideas and come to the rescue of free thought and ideas.
Interesting observations were made during the course of the arguments; the courts even went so far as to ask: ‘Please tell us what is the offence and under which section. Living together is a right to life.’
It was also noticed by the court that most of the cases had been filed against the actress by members of a rival political party who had thus turned the whole debate into a morality–politics issue.
I have great respect for Khushboo, who stood by her words because she had the courage to face the reality and call a spade a spade.
Subramanian Swamy v. Union of India
From Khushboo’s case, which was an example of vexatious litigation in the domain of the law of defamation, we traverse and come to the question: If the law has become an instrument of oppression and a tool to harass freethinkers, why does the Indian legislature continue to provide criminal genesis to it?
The answer to the question lies in the recent judgment of Subramanian Swamy v. Union of India,6 where the Supreme Court looked extensively into the criminal nature of the law of defamation and why it continues to this day.
The petition chall
enged the constitutional validity of Sections 499 and 500 of the IPC as relevant, calling it a relic of the past and a symbol of the colonial era, which was holding freedom of speech and expression hostage to the threat of criminal prosecution.
The judgment began by discussing the idea of ‘reputation’. Referencing several past judgments, it whittled down the definition of reputation to be:
[F]undamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on posterity. It is a nobility in itself, for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the downtrodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented, and it is perceived as an honour rather than popularity.
The court then proceeded to weigh the principle of reputation against the principles enumerated under the freedom of speech and expression, dividing the contention into four parts:
Defamation can only include a civil action but not a criminal action.
Even if defamation is considered to include in itself the criminal offence, it has to be understood in association with the phrase, ‘incitement to an offence’, where the principle of noscitur a sociis is required to be applied, which states that the meaning of an ambiguous word should be determined by considering the words with which it is associated in the context.