By Pinky Anand and Gauri Goburdhun

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.

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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.’

Excerpted with the permission of Penguin Random House India from “Trials of Truth: India’s Landmark Criminal Cases” by Pinky Anand and Gauri Goburdhun.

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