In India
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.
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
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 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
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
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
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 India
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
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