M/s Transcore Vs. Union of India & Anr. - A Perspective on Supreme Court Judgment

Whether the following provisos to Section 19 (1) of the DRT Act, 1993 prevent the Secured creditor to initiate action/proceed under SARFAESI Act without the leave of DRT to withdraw O.A.  if action under SARFAESI Act has already been taken?

"Provided that the bank or financial institution may, with the permission of the Debts Recovery Tribunal, on an application made by it, withdraw the application, whether made before or after the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2004 for the purpose of taking action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002), if no such action had been taken earlier under that Act:

Provided further that any application made under the first proviso for seeking permission from the Debts Recovery Tribunal to withdraw the application made under sub-section (1) shall be dealt with by it as expeditiously as possible and disposed of within thirty days from the date of such application:

Provided also that in case the Debts Recovery Tribunal refuses to grant permission for withdrawal of the application filed under this sub-section, it shall pass such orders after recording the reasons therefor."

What magic wand is to the magician is what the law to the interpreter of the law who uses it.  The phrase “if no such action had been taken earlier under that Act”  in the first proviso, can be construed as the condition in reference to the date of passage of this amendment, i.e., 11-11-2004 or it can otherwise be construed as general condition without having any specific reference to 11-11-2004.  Hence one may argue that if secured creditor initiates action under SARFAESI, he need not seek the leave of DRT, and another may argue that the action under SARFAESI should have been initiated prior to 11-11-2004 in order that the secured creditor seek the leave of DRT to proceed under SARFAESI.

If it is to be presumed that the date of passage of amendment has no relevance, the above phrase is a general condition without having anything to do with the date of amendment, then by simply initiating some action under the SARFAESI Act, the secured creditor can escape from the obligation of seeking the leave of DRT in order to proceed under SARFAESI Act.  It means two things, viz., A.  he can initiate action under SARFAESI Act nobody can prevent him from initiating such action B.  if such action is initiated, he need not apply for the leave of DRT to proceed under SARFAESI Act.

The word “earlier” is very tricky because it may mean the period prior to date of passage of amendment i.e., 11-11-2004, or in general sense it may refer to any action taken under SARFAESI Act whether such action is taken prior to 11-11-2004 or thereafter.  If the word “earlier” is to be interpreted as reference to date of passage of amendment, then keeping it in view, one may argue that after passage of amendment act dt.11-11-2004, no secured creditor should initiate action under SARFAESI Act without obtaining leave of DRT to withdraw O.A. 

But there could be a case where the action under SARFAESI is first initiated and O.A. is filed later even though both the actions are presumed to have taken place after 11-11-2004 because there is no proviso to prevent the secured creditor to file O.A. after action under SARFAESI Act is taken/initiated. 

In such case, the borrower cannot contend that the action should not have been initiated under SARFAESI Act, without taking the leave of DRT to withdraw the O.A. because it is not necessary that first O.A. be filed and then only action under SARFAESI be initiated by secured creditor.  It is the choice of the secured creditor, he can choose them in any order he wants.  In such case where action under SARFAESI is first initiated and O.A. is filed later, the word “earlier” takes a different meaning because action is already initiated under SARFAESI Act, though initiated after 11-11-2004, but before filing of O.A., which means O.A. is not existing as on date of initiation of measures under SARFAESI Act, even though such measures are initiated after 11-11-2004. Thus the question of withdrawal of O.A. does not arise. Hence the secured creditor can not apply for leave of DRT to withdraw the O.A under the said Proviso because action is already initiated/taken “earlier” under SARFAESI Act and O.A. is non-existent. 

The third proviso viz., “Provided also that in case the Debts Recovery Tribunal refuses to grant permission for withdrawal of the application filed under this sub-section, it shall pass such orders after recording the reasons therefor.", is not a compelling provision which forces the secured creditor to prevent action under SARFAESI Act, in the sense that it only means the DRT is conveying its inability to grant permission for withdrawal of the O.A., it does not mean that ‘the secured creditor is therefore not entitled to take action under SARFAESI Act’.

In fact the word “may” in the first proviso, instead of “shall” denotes that the application for withdrawal of O.A. is dependent on the choice of the secured creditor ‘whether to apply or not’, it is not a compulsion.

If it is to be presumed that the word “earlier” is made in reference to 11-11-2004 then, for O.A. made after 11-11-2004, the action under SARFAESI Act should have been initiated before 11-11-2004 in order that the secured creditor enjoy the privilege of not moving an application to obtain leave of DRT to withdraw O.A..  But the word “after” (whether made before or after the Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2004) may mean any date, any year after 11-11-2004.  Which means that for the O.A. filed in 2050, the action under SARFAESI Act should have been taken before 11-11-2004 in order that the secured creditor has the privilege of not moving an application to withdraw the O.A.  It makes no sense in view of Limitation period. 

On the other hand, it cannot also be argued that the legislative intent was to have an absolute bar on initiating action under SARFAESI Act without withdrawal of O.A. (even if it is filed in 2020 or 2050) that is why the proviso is so strict as to say that the action should have been initiated/taken prior to 11-11-2004 in order to enjoy the privilege of not applying for withdrawal of O.A., because, even after 11-11-2004 the secured creditor can first initiate action under SARFAESI  Act and then file O.A. under DRT Act, which possibility would extinguish the obligation to seek the leave of DRT to take action under SARFAESI Act, because there is no O.A. pending with DRT at the time of taking action under SARFAESI Act.  In such eventuality the proviso itself renders meaningless.

Hence the word “earlier” should be understood to convey a meaning in general sense, not in reference to 11-11-2004. 

Then the question arises - what purpose the first and third provisos to Section 19 (1) of DRT Act serve?  The contentions of counsel (produced below) for defendants in the case of M/s. Transcore Vs. Union of India answer this question to some extent.

-----------------

Extract from the SC Judgment – M/s. Transcore Vs. Union of India:

In reply to the above submissions, Mr. K.N. Bhat, learned senior counsel appearing for Indian Overseas Bank (the bank) submitted that, Section 13(2) notice is a condition precedent for invoking Section 13(4) of the NPA Act and, therefore, the said notice is an action and not a mere show cause notice. Learned counsel submitted that Section 13(2) notice is the step-in-aid for enforcement of security interest under Chapter III of the NPA Act. He submitted that the proviso to Section 19(1) of the DRT Act cannot affect the rights of a bank/FI under the NPA Act which deals only with recovery and which only deals with enforcement of security interest. Learned counsel urged, that Section 13(2) notice is given on the basis that the client's account in the books of account, which is an asset of the bank as the amount receivable under that account, has become sub-standard, doubtful or a loss; that Section 13(2) proceeds on the basis of classification of that account as a NPA; that there is no adjudication contemplated under Section 13(2) as the said section deals with enforcement of security interest alone which security interest is recognized by the Act as a financial asset of the bank/ FI. In the circumstances, learned counsel urged that, Section 13(2) notice is not a mere show cause notice.

 He submitted that, the purpose of NPA Act is to enable the secured creditor to enforce any security interest without the intervention of the court or the tribunal, apart from creation of asset reconstruction company and securitization company. In this connection, it was pointed out that sub-section (4)(a) of Section 13 of the NPA Act permits a bank/FI to take possession of the secured assets. Similarly, sub-section (4)(b) enables a bank/ FI to take over management of the business of the borrower. Similarly, sub-section (4)(c) permits appointment of a manager to manage the secured assets, the possession of which has been taken over and, similarly, sub-section 4(d) authorizes the secured creditor to require any transferee of the secured assets to pay the secured creditor the specified amount by just a written notice. According to the learned senior counsel, under the scheme of Section 13(4), all these powers are to be exercised without the intervention of the court/ tribunal.

He urged that if the proviso to Section 19(1) of the DRT Act is read as mandatory, then the consequence would be that a secured creditor can have recourse to Section 13 only with the prior permission of the DRT which would defeat the very object of the NPA Act which is to remove all fetters, if any, on the right of enforcement by the secured creditor.

It was next urged that the DRT does not have inherent powers and that Section 19(25) of the DRT Act which empowers the tribunal to issue appropriate directions for enforcement of its orders is not akin to Section 151 CPC and, therefore, a provision akin to the provision was necessary to be inserted. In this connection, learned senior counsel submitted that, in the DRT Act there was no provision similar to Order XXIII CPC and to get rid of that lacuna, the DRT Act had to be amended. He urged that, the proviso to Section 19 is an enabling provision. The bank/ FI may apply to the DRT for withdrawal of the O.A. in cases where the DRT has appointed a court receiver or in cases where the DRT had granted attachment or injunction. If the bank/ FI seeks to invoke the NPA Act vis-à-vis a financial asset over which a court receiver is appointed or over which an attachment stands then in such cases an enabling provision is made whereby the bank or FI can move the DRT for permission seeking withdrawal of O.A. in part or in whole in order to enable the bank/ FI to take appropriate steps for enforcement of security under the NPA Act.

Learned counsel submitted that, vide the impugned judgments, the High Courts have erred in making the said proviso mandatory/ obligatory. He submitted that, the very purpose behind the proviso would be defeated if it is read as mandatory. He submitted that, withdrawal application in respect of O.A. can be made by the bank/ FI at any time. The proviso is inserted only to meet contingencies where the assets are in possession of the court receiver or under attachment/ injunction. Learned counsel submitted that there is no bar to the application of both the Acts simultaneously. He submitted that the NPA Act gives to the bank/ FI an independent right and wherever required the bank/FI may apply that option as given to the secured creditor. In this connection, he submitted that, under third proviso to Section 19(1) of the DRT Act even part withdrawal of the suit/application is permissible. He further submitted that, under Section 13(10) of the NPA Act where the dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the bank/ FI may file an application to the DRT for recovery of the balance from the borrower. The point which is emphasized is that part withdrawal of the suits or the invocation of DRT jurisdiction for recovery of the balance are aspects which required an amendment to be carried out in the DRT Act as well as in the NPA  Act so that the provisions are brought at par with Order XXIII CPC. This was the main object behind the enactment to the first proviso to Section 19(1) to the DRT Act. In fact, it is pointed out by the learned counsel that the amending Act 30 of 2004 has made changes in both the DRT Act and the NPA Act simultaneously which indicates that both the Acts complement each other.

He submitted that the enabling provision under the first proviso had to be made so that withdrawal is restricted to cases where the bank/FI wishes to withdraw the O.A. for the purpose of taking action under the NPA Act and not for any other purpose. It is pointed out that Order XXIII CPC provides for several situations whereas the proviso to Section 19 deals with some aspects/ situations only. In this connection, learned counsel submitted that Section 13(10) provides for a fresh cause of action. Inability to realize the entire dues does not provide any fresh cause of action for proceeding under the DRT Act.

The course of action for proceeding under the DRT Act is the debt due. Not satisfying the dues fully, according to the learned counsel, is not a cause of action attributable to the borrower. He, therefore, submitted that proviso to Section 19(1) is not a condition precedent to taking recourse to NPA Act.

Learned counsel further pointed out that, Section 36 of NPA Act talks of limitation. Section 36 of  NPA Act makes it clear that no action under NPA Act can be taken unless the claim is within limitation and, therefore, according to the learned counsel, the time spent in adopting action under DRT Act is not excluded and it does not stop the limitation. Therefore, it is urged that this aspect also indicates that the proviso to Section 19(1) is not a condition precedent to taking recourse to NPA Act.

---------------

The DRT Act deals with both secured and unsecured assets of the borrower.  Whereas the Securitization Act deals only with the secured assets of the borrower with the exception of Section 13 (10) which provides for an application to DRT to recover the shortfall.  Invariably the shortfall must be recovered by attaching the unsecured properties of the borrower, which cannot be done without using the provisions of DRT Act.  In that sense the DRT Act is complementary to Securitization Act.

In other words, even the Securitization Act deals with unsecured assets but the procedure of recovery of shortfall shall be as per the provisions of the DRT Act.  In the same vein, if the shortfall is less than Rs.10 lacs the Civil court is the forum to deal with the case.  Then the provisions of CPC would apply to make an order of attachment of unsecured assets belonging to the borrower. 

There might be a situation where the shortfall is less than Rs.10 lacs, in which case, withdrawal of O.A. becomes necessary for the secured creditor.  This is one situation where the first proviso  to Section 19 (1) of the DRT Act, appears meaningful and relevant.  Secondly it makes no sense to withdraw the O.A. if the shortfall is more than Rs.10 lacs, in order to initiate action under Section 13 (10) of the Securitization Act because either the continuation of O.A. under DRT Act, or application under Section 13 (10), Rule 11 of the Securitization Act, leads to same course of action as far as DRT is concerned.  Hence withdrawal of O.A. is not necessary to proceed under SARFAESI Act.  The action under SARFAESI Act extinguishes with the sale of secured assets.  If there is still any shortfall of debt to be realized, then O.A. may continue.  That is impression that one gets reading the contentions of the counsel for the defendants as mentioned above. 

However, the legislative intent in making the first proviso to Section 19 (1) is that the secured creditor must be given a choice to either continue or withdraw the O.A. (the word ‘may’ in the first proviso denotes choice) in order to proceed under SARFAESI Act.  This is because the secured creditor may feel that the process of continuing O.A. is redundant in view of the easy remedy available to him under SARFAESI Act.  Sometimes if the secured creditor does not attend DRT proceedings, the case may be declared exparte.  So to avoid the burden of litigation, and to avoid the risk of case being declared exparte, the secured creditor may opt for withdrawal of O.A.

It also makes sense to presume that even if the O.A. cannot be filed again after withdrawal, in case of shortfall of debt to be realized after sale of secured assets the secured creditor has the remedy available under Section 13 (10) read with Rule 11 of SARFAESI Act to again take recourse under DRT Act.  Hence there is every reason for him to opt for withdrawal of O.A. under DRT Act if he finds continuation of the same cumbersome.  Alternatively, he may exercise his choice to not move an application before DRT to withdraw O.A. in order to proceed under SARFAESI Act.

Last but not the least, if the withdrawal of O.A. shall be made a pre-condition to proceed under SARFAESI Act, the amendment shall be made to SARFAESI Act, not to DRT Act.  As such there is nothing in SARFAESI Act to suggest that withdrawal of O.A. under DRT Act is necessary to proceed under SARFAESI Act. 

The expression “if no such action had been taken earlier under that Act” in the first proviso shall be understood in the sense that if action under SARFAESI Act had already been taken, the application for withdrawal of O.A. shall not be moved, there is no such option available to the secured creditor.  In other words, the scheme of Section 19 (1) read with first proviso under Section 19 (1) shows that the secured creditor has no choice other than pursuing both the remedies under DRT Act and SARFAESI Act., i.e., continuation of O.A. and continuing action under SARFAESI Act, if action has already been taken under SARFAESI Act before filing of O.A. under DRT Act.  One of the reasons why the first proviso stipulates that the O.A. filed after action taken under SARFAESI Act shall not be withdrawn is that the secured creditor, if he is confident of recovering the debt through SARFAESI Act he will not file O.A. under DRT Act.  The very act of filing of O.A. under DRT Act after action been taken under SARFAESI Act shows that the secured creditor is not confident of recovering the debt through SARFAESI Act, hence the proviso does not allow the secured creditor to withdraw the O.A. filed after action is taken under SARFAESI Act.

This is to ensure that both the legislations complement each other to serve the common purpose of recovery of debts.  That is why the amendment made on 11-11-2004 is named as Enforcement of Security Interest and Recovery of Debts Laws (Amendment) Act, 2004. 

In a nutshell, this is to say that if O.A. is filed after action is taken under SARFAESI Act, it shall not be withdrawn, and alternatively if O.A. is filed before the action contemplated under SARFAESI Act, the secured creditor may exercise his choice to withdraw the same using first proviso to Section 19 (1) of the DRT Act.  This follows the logic mentioned in the earlier part of this answer viz.,

But there could be a case where the action under SARFAESI is first initiated and O.A. is filed later even though both the actions are presumed to have taken place after 11-11-2004 because there is no proviso to prevent the secured creditor to file O.A. after action under SARFAESI Act is taken/initiated. 

In such case, the borrower cannot contend that the action should not have been initiated under SARFAESI Act, without taking the leave of DRT to withdraw the O.A. because it is not necessary that first O.A. be filed and then only action under SARFAESI be initiated by secured creditor.  It is the choice of the secured creditor, he can choose them in any order he wants. 

In such case where action under SARFAESI is first initiated and O.A. is filed later, the word “earlier” takes a different meaning because action is already initiated under SARFAESI Act, though initiated after 11-11-2004, but before filing of O.A., which means O.A. is not existing as on date of initiation of measures under SARFAESI Act, even though such measures are initiated after 11-11-2004. Thus the question of withdrawal of O.A. does not arise. Hence the secured creditor can not apply for leave of DRT to withdraw the O.A under the said Proviso because action is already initiated/taken “earlier” under SARFAESI Act and O.A. is non-existent. 

One of the implications of continuing both the remedies at a time is that either of the two remedies can be used to expedite the process of recovery and in case of shortfall in realization of debt even after sale of secured assets under Securitization Act, the secured creditor can continue with the O.A. instead of invoking provisions under Section 13 (10) read with Rule 11 of Securitization Act. 

One of the possibilities is that O.A. may be filed before or after 11-11-2004, in both the cases if the action is not taken under SARFAESI Act, the secured creditor can choose to apply for leave of DRT to withdraw the O.A. 

Another possibility is that the O.A. may be filed before or after the action taken under SARFAESI Act.  In both these cases, the secured creditor shall not apply for leave of DRT to withdraw the O.A., because action has already been taken under SARFAESI Act.  The only situation where the secured creditor can move an application before DRT to withdraw O.A. is where the action under SARFAESI Act has not been taken, it is being contemplated. 

The situation as mentioned above shall satisfy two conditions, namely:

1. the O.A. should have already been filed, whether filed before or after 11-11-2004
2. no action has been taken under SARFAESI Act subsequent to filing of O.A. as mentioned in 1 above.

Khushboo vs. Kanniammal & Anr. : SC Judgment - A perspective

In India the social platform to raise issues and express opinions is electronic and print media.  So much of hue and cry is made out of the issue of criminal complaints lodged against Actress Khushboo yet, even after the judgment of Supreme Court it has been observed that people did not stop taking sides.  Some people interpreted SC Judgment as progressive judgment and praised it for its progressive nature and some viewed it as endorsement of views expressed by Khushboo, which in turn would carry a negative impact on the minds of youth. 

When political parties involve in a moral question, needless to mention, people start taking sides.  Here in this issue, the PMK is the litigant, who is behind filing of criminal cases against Actress Khushboo.  Whereas it is true that the personal views expressed by a celebrity should not be taken so seriously as to exaggerate the fallout to cause a serious social imbalance and moral setback to the society as a whole, we find that the people have not taken note of the fact that the views per se do not carry any effect, unless they are popularized by opposing interests. 

In my view, it is not her remarks on pre-marital sex that would presumably set in motion the process of alleged moral degradation, but the popularity given to those ideas by the opposing groups that claimed her remarks to carry such a negative impact.  Whether to endorse her remarks or not shall not be the subject matter for Supreme Court, the point of consideration is whether there is prima facie case against her or not for what she expressed in her personal capacity for which a criminal proceeding is needed.

In its judgment the Supreme Court observed:

In order to decide this case, it will not be proper for us to either condemn or endorse the views expressed by the appellant. When the criminal law machinery is set in motion, the superior courts should not mechanically use either their inherent powers or writ jurisdiction to intervene with the process of investigation and trial. 

To that extent the Supreme Court is right and honest in admitting that it had no intention in either condemning or endorsing the views expressed by the appellant, it is merely considering the question as to whether the personal views expressed by the accused amounts to an “offense” under Indian Penal Code, for which she is liable for punishment.  However, the contents in Para 21 gives an impression to the reader that the Court carried a bias towards the views expressed by the accused, may be born out of the sympathy caused due to the fact that she has been facing unnecessary hardships in defending the cases filed against her or because the jury itself carried a tendency to accept the views expressed by the accused. 

Para 21 of the judgment says:

While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of `adultery` as defined under Section 497 IPC. At this juncture, we may refer to the decision given by this Court in Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522, wherein it was observed that a live-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of `adultery`), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or "live with anyone she likes". (emphasis supplied).

Though the SC did not intend to endorse the views of the accused, the above paragraph clearly shows that the Supreme Court had already endorsed the premarital sex which is consensual in nature even before it started considering the question as to whether the accused is criminally liable for her remarks on the subject.  Hence even when it says, it will not be proper for us to either condemn or endorse the views expressed by the appellant, it did not restrain from endorsing the views of accused because the way it interpreted law in the referred judgment, works out in such manner as to fall in line with the views expressed by the accused. 

Hence the bias in favor of the accused.

Admittedly, the appellant`s remarks did provoke a controversy since the acceptance of premarital sex and live-in relationships is viewed by some as an attack on the centrality of marriage. 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 co-extensive. (Observations of Supreme Court)

Supreme Court is not a creator law, but an interpreter of law.  Its duty is to interpret various laws, consider various facts and circumstances of the case, and then deliver justice to whosoever in need of it.  The views like morality and criminality are not co-extensive suggests that the Supreme Court had not taken into consideration the inherent cultural, social and moral impact on the legislature in framing sections like Section 497 in IPC which clearly interfere with the domain of personal autonomy.  The judiciary in a democracy is like a machine, it cannot have views, independent of law of land. 

In fact though there is opposition to the views expressed by the accused, keeping aside whether they are liable for a criminal proceeding, there is no legislative intent to endorse the views of those who oppose these ideas.  In fact, in a Democracy, it is the views of majority that shall prevail and even in the survey conducted by the India Today, when the questions about premarital sex were raised, like –

Will you marry a person who had relationship with others? 18% - Yes, 71% - No

Is it necessary to be a virgin till the time of marriage? 65% - Yes, 26% - No

the majority of respondents did not endorse premarital sex.  Moreover, the survey is conducted among respondents in ‘big cities’, the sample does not even take into account the views of people in towns and villages, who are more conservative in their views about premarital sex.  That being the case, it is very disturbing to note that an institution of the stature of Supreme Court had endorsed the views of the accused quoting the previous judgments. 

It is more an error of law, than that of a judge, to endorse such views that need to be rectified with an enlightened legislative intent so as to avoid the judiciary to club its personal inclinations with the lacunas in law making, to arrive at its own conclusions at its own convenience disregard to the views of majority of people.  Even considering the judgment of Supreme Court in the case of Lata Singh vs. State of U.P. & Anr., AIR 2006 SC 2522, it is very premature on the part of Supreme Court to conclude that the law as on date of the judgment will remain as it is forever and as such there is no harm in endorsing the views on premarital sex.  In fact several questions emerge out of the quoted portions of SC judgment in that case itself, like whether the consensual sex between minors constitute an offense. 

If the Supreme Court is to endorse the consensual premarital sex between adults as the one carrying no statutory and criminal liability, then on the same grounds, it can also endorse consensual sex between minors, because a reading of IPC, 1860 suggests that except the Section relating to Rape (section 375), there is nothing that prevents a minor to have consensual sex with another minor or major.  Even in Section 375 which says:

A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

    Sixthly - With or without her consent, when she is under sixteen years of age.

there is nothing that prevents any man who is either a major or minor to have consensual sex with a girl who attained the age of sixteen years.  That is to say, that the law defines the age of participation in sex as sixteen years for a girl and the age for her marriage as eighteen years.  Hence to say that only the consensual premarital sex between adults is allowed under law is an erroneous view.  Even the minors can participate in consensual premarital sex, it does not attract any penal action under the existing laws. 

Hence the definition of ‘major girl’ as per law may not necessarily be in reference to attainment of majority for marriage, but attainment of sixteen years.  In the State of Manipur, the age mentioned in the sixth clause is fourteen years, which in other words, means that if any man has consensual sex with a girl attaining 14 years (in that State) it is not an offence under any of the laws of land.  That being the case, the question before the institutions of democracy and society is, can we endorse premarital sex merely because the Supreme Court had raised no objection to it, in view of its judgment in the above mentioned case. 

And also whether the same health factors that expose a girl to risk for a premature marital relationship are not applicable for premature consensual sex? In India, the evolution of law with regard to consensual sex, has not matured enough for the Supreme Court to endorse the views of the accused quoting previous judgments.  If we are to understand the views expressed by the accused and the Supreme Court with regard to premarital sex in general sense, then the scope of exclusion of criminal liability extends to even such girls, who might not have even attained puberty. 

In a country that is plagued by the flesh trade, legitimizing consensual premarital sex, also legitimizes the flesh trade, because the actions of women/girls participating in sex work, can be legitimized on the ground that they amount to consensual premarital sex.  Needless to say, a girl in need of money may also consent for premarital sex with any man who is not fit to be her friend, husband or lifepartner, and that is not a serious factor for the proponents of premarital sex.  And that does not presumably raise health concerns regarding those girls, who indulge in sex for the sake of money, without knowing whether the man they are participating in sex with carries any venereal disease.

Days are gone, when sex trade used to remain within some red light areas, outside the ambit of places occupied by civil society. These days, even the college girls belonging to rich families, participate in flesh trade for the sake of pocket money, using modern facilities like Internet to gain access to consumers.  Incidents of several sex rackets were reported by Media in the recent past.  They don’t happen in some red light areas exclusively meant for sex trade.  They do happen around us, probably in a house next to ours in our neighborhood.  How in a civilized territory, one can make out the difference between a live in relationship and a sexual consent accorded by a girl to a stranger, with a motive to make money?

 "According to me, sex is not only concerned with the body; but also concerned with the conscious. I could not understand matters such as changing boyfriends every week. When a girl is committed to her boyfriend, she can tell her parents and go out with him. When their daughter is having a serious relationship, the parents should allow the same. Our society should come out of the thinking that at the time of the marriage, the girls should be with virginity. None of the educated men, will expect that the girl whom they are marrying should be with virginity. But when having sexual relationship the girls should protect themselves from conceiving and getting venereal diseases."  (Khushboo)

Even assuming that the above remarks made by the actress were more in concern with the health of the girls/women having pre-marital sex, one cannot understand, how an endorsement of pre-marital sex can contribute to the health factor of the women in general because most of the sexual relationships of women outside the ambit of marriage expose the women to the health risk in view of the fact that more women participate in premarital sex either out of impulse, ignorance, infatuation or for the sake of money, than with a learned view to commit themselves to the person they are having sex with. 

To seek social acceptance for everything that we are not capable of dealing with is not a learned idea.  On that ground, one may even seek social acceptance for sex trade, or even child labor.  But we are not supporting child labor on the same ground that it is not possible to avoid it or prevent it, hence we should not be hypocritical about the existence of the same, and hence it needs a social sanction.  In fact the child labor is more prevalent than the pre-marital sex, but nobody dared to endorse it, but endorsing pre-marital sex is juxtaposed to elite views on sexual freedom, which many celebrities like to use as a style statement in order to gain popularity in their social circles that view this kind of conflicts as a conflict between progressive and regressive society or orthodox society.

Coming to the aspect of freedom of expression, Supreme Court held:

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 favor 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 cognizance of the same. We must be mindful 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.

The Supreme Court is right in its judgment in so far as it relates to quashing the criminal proceedings against Actress Khushboo on the grounds that the principle of placing reasonable restrictions on ‘freedom of speech and expression’ is not applicable in her case.  She is entitled to have her own views, qualified or unqualified, matured or immatured, she reserves a right to express her views.  In fact, it is the intention with which the views are expressed that must be taken into account in deciding whether the speaker of such views is criminally liable or not.  The views expressed by Actress Khushboo are not made with an intention to transform the society, or with an aim to weaken the institution of marriage and spread some alien culture among the people.  Her remarks on premature sex are very casual in nature, and personal as well without any hidden agenda to affect any of the sections of civil society. 

She was not a politician to thrust her views on public. 

However, as people started taking sides, and a controversy has been existing ever since PMK started agitating against her remarks, she herself lost a little bit in this drama and showed a tendency to endorse her views, that she considered to be very casual remarks in the beginning.  After the Supreme Court judgment, what she considered to be ‘casual’ in the beginning turned out to be a vindication of her stand on pre-marital sex.  It is necessary we understand quashing of criminal proceedings against her does not amount to endorsement of her personal views on the subject.  They are two different aspects.  Encouraged by the popularity gained by her with this issue, after Supreme Court judgment, some sections of society seem to be urging her to join politics. 

That is another malady that needs to be rectified at social level.  Whether to join politics or not is her personal decision, she has an image, notwithstanding anything that relates to this issue, which is enough for her to make an entry into politics with the help of friends in Media.  It is not necessary that she makes an entry into politics on a false premise that the SC judgment in her favor is a vindication of her stand on the controversial subject of pre-marital sex. 

In country where, recognition of skill or talent is a need that compels people to indulge in emotional slavery to the people in high places, media is the only institution that helps people to be recognized for their talent and skill without having to indulge in emotional gymnastics with people in high places.  That being the case, when she is already a popular actress, there is no need for Media to inspire her to take entry into politics on the false premise of vindication of her stand by Apex Court on pre-marital sex.  If it is doing so, that is because the Media is part of that part of society in India which often lampoons the middle class social values of marriage and sexual loyalty of men and women as regressive, hypocritical and orthodox, and also because, the Media has a need to be in touch with Celebrities without whom, it cannot survive as a business institution.  Hence Media also, for business purposes, shows a tendency to endorse the views of Celebrities.

On the part of PMK, the attempt to gain popularity using the remarks of a popular figure is very evident.  That is a reflection of standards of professionalism in India.  Where a skill, work or talent is recognized promptly, people would grow in the ladder of their professional hierarchy with dignity and self-respect.  Where a skill, work or talent is not recognized and the people in high places seek an emotional surrender to the one who offers recognition in return, these tendencies to gain popularity using cheap tactics exist.  Shivsena opposing Tendulkar and Shahrukh Khan recently and PMK opposing Khushboo are all the attempts to remain in the public domain by the free publicity offered by Media.  There is no way for upcoming political professionals to come up in their organizational hierarchy other than by attracting the attention of media and general public by resorting to this kind of tactics.  

In fact there is a cause in the issue they have taken up against pre-marital sex, because if pre-marital sex is encouraged, that will lead to commodification of sex further which is already rampant in India.  Consent for sex is an intriguing phrase, because a consent can be accorded by male or female for any reason, other than marriage or live in relationship.  A woman can give consent for a male to have sex for a job or for money.  The need for job and money, may in turn be sexually exploited by men.  Endorsing premarital sex will lead women to treat sex as an instrument to achieve job, position, social status, make money….it alls disturbs the sanity and dignity provided to women by the institutions of family and marriage. 

Nobody knows when a woman goes out with a man, what is her relationship with him and with what motive she has consented for sexual relationship with him if she boldly admits before society, I bear a sexual relationship with him, consensual sex is not a crime.  It is surely a cause to preserve the sanity and dignity of women, but with what motive the PMK and other litigants opposed Khushboo is known to everyone.  The opposing interests are not in support of the cause, but in support of their own selfish and professional needs. 

That is why it is necessary the civil society take a view on the subject, without either endorsing the views of Actress Khushboo or endorsing the views of those people who have taken up the cause against pre-marital sex for professional reasons. 

In fact the ideological threat from the side of proponents of sexual freedom for women and proponents of premarital sex is that irrespective of whether a woman adheres to the values of marriage and sexual loyalty, she shall be given recognition and respect for whatever she is.  Most of it is to give an ideological justification to the aspect of commodification of sex.  Otherwise, it becomes difficult to enjoy the recognition given by the success achieved through commodification of sex. 

Is it necessary in order that we respect a woman as a ‘nice human being’ only if she adheres to the values of marriage and sexual fidelity?

For what else a woman can be respected?  For money, social status, power and position like men are being respected for those aspects irrespective of whether they adhere to the values of marriage and sexual loyalty.  There is no gender equality on that count because the so-called orthodox society relies heavily giving too much of social responsibility to women to uphold the age old values of marriage and sexual morality, which the women are not willing to assume, now a days owing to pressures to achieve social status and success.

Forget whether she is good and bad and don’t measure her personality in terms of values of marriage and sexual morality.  Just learn the need to respect her for what she is and what she achieved in her profession, whatever the means to achieve the success.  In a materialistic society, nobody respects others for the values they uphold.  People respect others for the power, position, success and social status they achieve.

The opponents of premarital and consensual sex say, in order that we respect a woman for what she is, we need her to adhere to the values of marriage and sexual morality.  Otherwise, we cannot treat her to be a ‘respectable person’.  Why can’t?  Is it not your hypocrisy that you allowed commodification of sex and build temples for heroines like Khushboo on one side and the other side vouch for theories of sexual morality?

True.  But what if a woman is incapable of commodifying her sexuality?  What if she fails to attract men investing her beauty and flesh?  Not every woman can be Aishwarya Rai and Sushmitha Sen.  Not every woman can be Bipasha Basu and Mallika Sherawat.  Only one in a lac or 10 lacs may achieve success for commodification of sex.  For perpetuation of the images and dignity of a few women who can be counted with fingers, can we hold the values of marriage and sexual morality to ransom?

What happens to those women who cannot commodify sex and sell their sexuality?  It is a settled business principle that, in a market, any commodity that cannot be sold, that does not have demand from people becomes cheap.  The seller loses his business and gets losses.  For women who made an attempt to commodify their sex, it is not only the loss of business, but also a loss of image.  If a woman is a seller of a soap or biscuit and she cannot sell it, people will only hold the bad quality of soap or biscuit responsible for the loss of her business.  But if she fails selling her sexuality and beauty, then people will hold her image and personality to be responsible for the loss of her business, because sexuality is something that is a part of our image and personality unlike a biscuit or soap. 

If we can’t sell soaps, the soaps become cheap in the eyes of buyers, if we can’t sell sex, then we become cheap in the eyes of buyers.  I am not talking lofty ideals, just explaining the ‘market mechanism and market dynamics’. 

“Why the hell should anyone form any opinion about any woman?” they may ask.  Can’t she live with a sense of freedom if nobody forms any opinion about her?  Where is the need for you to think good or bad about any woman?  You do your work, she does her work, you make your money in your profession, she makes her money in her profession, can’t we survive like that?

A good question. 

We are part of civil society.  To be in the know about others is a compelling need for social beings. If we don’t know about others, then women will die like Parveen Babi, and people will only know about their death, only when the smell of dead body comes out of their dwelling place.  That is one thing.

Secondly, you belong to a society where women are treated as objects of sex, and by commodification of sex, women achieve social status.  We belong to a society where women are treated as object of morality, as a mother and sister.  Both these societies are part of India.  They are not insulated from each other, either psychologically or geographically.  Hence it is very much possible that I may take my wife to the house of such man, who treat woman as object of sex.  How he perceives my wife, during socializing is a matter of concern for me.

Hence it is for me to be in the know about others as to what values they stand for whether they are men or women.

Like you ask me to respect your freedom of expression and values you vouch for, I too ask you to respect me for my freedom of expression and values I vouch for without holding these views to be hypocritical, orthodox, idiotic, senseless and far from reality of public life.  I have not seen what happens in your world and society.  I don’t belong to that part of the world.  That does not mean I am hypocritic.  Similarly you have not seen this part of the world and society that I belong to.  Hence you cannot claim to be realistic about your ideas about the sexual morality of women of this society.

There are exceptional cases of consensual pre-marital sex that carries with it an elite touch of intellectuality, other than that, all relationships between men and women outside the ambit of marriage are fraught with the risk of exposing the women to venereal diseases and the majority belongs to this second category because of illiteracy and economic backwardness of women in India.  There are elements in society that indulge in sexual exploitation of women and there are professionals practicing law, who can provide sanctity to such sexual exploitation quoting the judgment of Apex Court regarding consensual premarital sex.  The only deterrent from these erratic tendencies is the institution of marriage and the values associated with it. 

To legitimize premarital sex keeping in view, some exceptional cases is inviting trouble for all such women who indulge in pre-marital sex for reasons other than indulging in a “serious relationship” as referred by Khushboo in her remarks. 

We should not try to resolve our moral dilemmas using prematured laws and surveys conducted by some magazine that relies its grasp of subject based on a sample that does not necessarily represent the views of the people.  Even if we are take the survey on its face value, there is nothing in the survey to suggest that people/respondents have endorsed the views on pre-marital sex.  The majority are not in favor of pre-marital sex.  The entire understanding of actress Khushboo is based on the fact that the incidence of pre-marital sex is on the rise.   But strangely nobody is bothered, she is endorsing the views of minority of the respondents of that survey. 

While reading my article on SC judgment on Khushboo’s case, some of you might have thought, there is nothing in what she said about consensual sex or endorsing sex trade, he is exaggerating too much.

Here is what she remarked:

“According to me, sex is not only concerned with the body; but also concerned with the conscious. I could not understand matters such as changing boyfriends every week. When a girl is committed to her boyfriend, she can tell her parents and go out with him. When their daughter is having a serious relationship, the parents should allow the same. Our society should come out of the thinking that at the time of the marriage, the girls should be with virginity. None of the educated men, will expect that the girl whom they are marrying should be with virginity. But when having sexual relationship the girls should protect themselves from conceiving and getting venereal diseases.”  (Khushboo)

Though what she said is very casual and does not deserve such an eye for detail, because entire controversy is surrounded by the agitations against these remarks, we need to have an understanding of what she wanted to say.  In fact, the words that are casually spoken reflect the mind of the person better than those that are carefully articulated and pre-meditated. 

On careful analysis, I find that, one of the aspects of her statement is related to a girl’s commitment to her boyfriend or lover.  When their daughter is having a serious relationship, the parents should allow the same. Our society should come out of the thinking that at the time of marriage, the girls should be with virginity.  What she wants to say with this is that the parents should respect the decision of the girl (their daughter) to choose her life partner.  That is one aspect.  Another is, if she commits herself sexually with her boy friend, then they should not blame her. That is another aspect. 

None of the educated men will expect that the girl whom they are marrying should be with virginity.  While the above remarks about girl’s parents represent her expectation from parents, this statement about educated men is her understanding about factual reality of psyche of men.  What she wants to say is, even men don’t care about it much, whether the girl is virgin or not, hence there is no need for girl’s parents to worry about that aspect and harass girl if she has any kind of sexual relationship with her boyfriend. 

But here there are two aspects to take note of here.  A girl may not remain a virgin because of her boyfriend at the time of marriage or by the time she enters into relationship with boyfriend itself, she may not remain a virgin.  It is in reference to this second aspect that she cautions girls to protect themselves from venereal diseases.  Otherwise, it is hard to imagine Khushboo advising to the parents of the girl to have a boyfriend(s) who possess(es) a venereal disease which he/they in turn would transmit to the girl and still urge her parents not to have any say against the girl for her relationship with him/them.

It is in this context I hold her views very immatured.  Immatured because, one side she says, “if the girl is committed to her boyfriend, parents shall not have any objection”, the other side she cautions girls, “protect yourself from venereal diseases”.   In other words, she is claiming social sanction for both committed and frivolous relationships.   Less objectionable to orthodox society would be a relationship where a girl loses her virginity because of her boyfriend that she would consequentially accept as her husband/lifepartner.  What angers the orthodox society is seeking social sanction for even such frivolous relationships that might land her into the trouble of attracting venereal diseases.

And understandably, she has not spoken her views with careful deliberation and pre-meditation.  Hence they don’t deserve the attention of society.  But because she enjoys a star status, these remarks have assumed undue importance in public domain and people trained to gain professional mileage whatever way possible with these remarks. 

Question is always before people whether we should hold discussions on issues, taking the wisdom behind ideas into consideration or the social status and image of the person speaking into consideration.  As we are aware, whether foolish or immatured, idiotic or lunatic, it is the ideas of celebrities that matter for media. 

When we read the following observations of Supreme Court, I feel the Supreme Court did not analyse her remarks thoroughly. 

We must also respond to the claim that the appellant`s remarks could have the effect of misguiding young people by encouraging them to indulge in premarital sex. This claim is a little far-fetched since the appellant had not directed her remarks towards any individual or group in particular. All that the appellant did was to urge the societal acceptance of the increasing instances of premarital sex when both partners are committed to each other. This cannot be construed as an open endorsement of sexual activities of all kinds.

Why does a girl get venereal disease if she has only one life partner?  Then argument arises, “it is OK yaar, it is not necessary that a girl has more than one life partner in order that she gets a VD”.  Fine, then in such case, how the society would accept to give social sanction to even relationship with that one fellow when he has VD?

It would also be instructive to refer to a decision of the House of Lords (U.K.) in Gillick Vs. West Norfolk and Wisbech Area Health Authority, (1985) 3 All ER 402. In that case, mother of a teenage girl had questioned the decision of the National Health Service (NHS) to issue a circular to local area health authorities which contained guidelines for rendering advice about contraceptive methods to girls under the age of 16 years. Objections were raised against this circular on the ground that the health service authorities had no competence to render such advice and that doing so could adversely affect young children while at the same time interfering with parental autonomy in the matter of bringing up children. The majority decision rejected the challenge against the circular by clarifying that the rendering of advice about contraceptive methods and their provision by medical professionals did not amount to a sexual offence. Among the several aspects discussed in that case, it was held that the provision of information about contraceptive facilities to girls under the age of 16 years could not be opposed on the ground that such information could potentially encourage more sexual activity by the teenagers. For the purpose of the present case, this decision supports the reasoning that we must fully understand the context and the purpose for which references to sex have been made in any given setting.

The context in which the House of Lords supported the provision of information about contraceptive facilities to girls under the age of 16 years is similar to the context of the advice rendered by Actress Khushboo, but only the cultural background of the two countries differ.   In a country where the culture allows premarital sex by dating, a mother had objected the decision of National Health Service to issue a circular to local health authorities rendering advice about contraceptive methods to girls.  How did the judiciary imagine that in India, which does not have the culture of premarital sex at all (because we don’t have dating culture in India), the mothers would be so generous towards the advice rendered by anyone regarding the usage of contraceptives by girls?

For our culture it is more advisable, the parents tell their children, “If you have pre-marital sex, not only our culture disallows it, it will become difficult for us to get you a match, but also there is possibility of getting VD or AIDS”, instead of saying, “You have sex with whosoever you want, but use contraceptives to avoid unwanted pregnancy and VD”. 

I don’t think the example of UK quoted by the Supreme Court is applicable in Indian context.  May be the creamy layers in India, like the mothers of children in film industry, advertising (media and politics omitted) industry speak to their daughters like that, but middle class mothers can never advise their daughters like that.

Of course, if any health authority talks about it, that is a different matter.  In country like UK where people have dating culture, if a mother objects to advise given by health authorities on the usage of contraceptives, how in a conservative society such as ours, even mothers are asked to accept pre-marital sex and advise their daughters on usage of contraceptives?  Khushboo is not even asking the health authorities, she is directly asking the mothers of children to advise their daughters?

How will it not be objected by social groups, I don’t understand.  The learned Court should understand the concerns of genuine people also, it is not only PMK that filed cases against Khushboo for professional reasons, I have seen several NGOs and social groups, that discussed this issue in regional media (Telugu Newschannels), have objected to Supreme Court judgment.   To carry a presumption that mothers advising children about contraceptive as being “progressive” and mothers not advising anything as such, being “hypocritic” is something that would surely set the process of rebellion in motion.  It is a personal remark against people following ‘native culture’, which is very important for them all to preserve.

I feel certain parts of SC judgment surely hurt the public sentiment.    My view is that we should go to UK and explain the people over there, the greatness of Indian culture and explain to them, if people of Western Countries follow our values, your daughters will remain “safe” forever from AIDS and VD, instead of thrusting upon the mothers of India the so-called “progressive” values of the West.  We should take initiative to campaign against the bad consequences of “dating” culture instead of advising youth to take contraceptives.