A relook at moral policing: Khushboo’s case
(Pinky Anand is a Supreme Court lawyer who fought the case on behalf of Khushboo. The views expressed here are her own)
The recent Supreme Court judgement in Khushboo’s case addresses interesting questions with far-reaching impact. In a short span, we have witnessed various episodes of moral policing ranging from violent physical attacks, to criminal complaints, to Public Interest Litigation (PILs) in courts.
In January 2009, the incident in Mangalore where young women were thrashed by Ram Sena workers merely because they chose to sit in a pub, spoke volumes about the intimidation and misuse of power by anti-social workers.
Similarly, the display of outrage by some sections of society because Richard Gere kissed Shilpa Shetty in public in April 2007 during an AIDS awareness event, indicates our intolerance as a society towards the expression and display of emotion by different people.
M.F. Husain has been targeted for obscene paintings. It is another story that the debate as to what would qualify as ‘obscene’ is yet to be resolved. The pertinent question is whether the citizens of India have a right to live in the country without fear and intimidation?
In 2007, Chandramohan, an art student from Maharaja Sayajirao University at Baroda was held in police custody for six days for painting allegedly obscene works as part of an examination.
People of the society who consider themselves to be the ‘protectors’ of Indian culture and tradition and set out to morally police the public tend to forget that society is a dynamic institution.
Society and its members are constantly evolving. When certain sections of the society are in denial of such evolution, they resort to coercive, aggressive and violent means in order to preserve what they think is Indian culture and tradition. When people cow down, the perpetrators get drunk with power and their acts become criminal.
The Indian Constitution guarantees fundamental right of speech and expression under Article 19(1) (a). The right to freedom of speech and expression is not absolute. Clause (2) of Article 19 contains the grounds on which restrictions on the freedom of speech and expression can be imposed which include security of state, friendly relations with foreign states, public order, decency or morality, contempt of Court, defamation, incitement to an offence and sedition.
The ambiguity arises due to the amorphous terms ‘public order’ and ‘decency and morality’. Indian courts have time and again held that ‘public order’ would mean something more than ordinary maintenance of law and order.
‘Public order’ is synonymous with public peace, safety and tranquility. The test for determining whether an act affects law and order or public order is to see whether the act leads to the disturbances of the current of life of the community so as to amount to a disturbance of the public order or whether it affects merely an individual leaving the tranquility of the society undisturbed.
Similarly no fixed standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place. It has been held by the apex court 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.
In an evolving society like that of India, ‘decency and morality’ are relative terms. The standards of decency and morality change as the society progresses. What was unthinkable yesterday is a possibility today.
Civil society and more so a democracy like India has to be tolerant and acceptable of the right of people to free speech, opinion and discussion. One of the fundamental pillars of a democratic state is free speech and this cannot be curtailed by the so-called “protectors” of society.
In an interview for a survey to a leading news magazine, Khushboo expressed her personal opinion noting the increasing incidence of pre-marital sex, especially in the context of live-in relationships, calling on society not to be hypocritical and to address social realities. She advocated awareness and safety measures.
Justice B.S.Chauhan for the three-judge bench held that 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, stress must be laid 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.
The Supreme Court quashed all the criminal complaints pending against Khushboo and held 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. It held that the initiation of a criminal trial is a process which 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.
It was held that Khushboo had merely referred to the increasing incidence of pre-marital sex and called for its societal acceptance. At no point of time she had described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader.
The Supreme Court held that Khushboo had not directed her remarks towards any individual or group in particular. All that she did was to urge the societal acceptance of the increasing instances of premarital sex when both partners are committed to each other.
This could not 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.
The apex court held that 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. 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 coextensive. 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 right to air your views without fear of reprisals and the disproportionate response to Khushboo’s remarks.
It was observed that the right way to express disagreement with another person’s views is to contest their 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’.
More often than not celebrities are the most common targets for the moral brigade as news relating to them create sensation and attract public attention. Political workers who constitute major fraction of the moral police catch on to the musings of celebrities and create a furore on the ground of being obscene and against Indian culture.
This is the easiest and quickest way for the various political parties to exploit the sentiments of vulnerable people and get attention and eventually pave a way to secure vote banks.
(You can e-mail Pinky Anand at: firstname.lastname@example.org)