India First Edition

By Srinivas Bodduluri

kushboo

A girl called Khusboo Khan stepped out of VIII Class to try her luck in the tinsel town of Mumbai. Having everything in excess, she was promptly passed on and South India Cinema, reconciled to live largely on English and Hindi film left-overs, greedily lollipopped her up. With a 100 roles in her kitty, she moved on to the idiot box. Khusboo grew too big to be confined to calendars in bars and wine shops and so became a statue in a temple in Tiruchirapalli, transcending one place of temporary inebriation to another of permanent inebriation.

Now, Khusboo took her role seriously and so had to deliver sermons too. Success justifies the means adopted and Khusboo honestly believed that what was good for her was good for the rest of us too, more particularly the fairer sex of Tamil Nadu. So, she chastised society for twining marriage with sex and exhorted that sex need not wait till marriage. She admonished all suitable boys to desist from insisting on virginity of grooms. ‘India Today’, which continually dolls out titillating soft-porn like pulp journalism in the name of surveys about life styles, to keep its circulation swelling, promptly carried the sermon in its English and Tamil editions.

The permissive were shocked that their secrets were made public. The rest were genuinely offended. There was a hue and cry. Khusboo believed her base to be too strong to be shaken. And when a reporter of ‘Dhina Thanti’ sought her clarification, she scorned at the hypocrisy of the rabble rousers, who she said were all indulging in pre-marital sex. Public anger knew no bounds and they slapped 24 criminal cases against her across the length and breadth of Tamil Nadu and one in Indore and roused the Temple to the ground.

The allegations against her were that she defamed woman folk, enraged their modesty etc. Obviously, finding it difficult to carry herself to so many police stations and courts, Khusboo carried the matters to the High Court of Madras. She asked the Court to quash the complaints, exercising its powers under Section 482 of the Criminal Procedure Code, which means stopping the investigation by the police and her prosecution by the lower courts, permanently. This was a power to be exercised sparingly in rare cases where the complaint filed against one is glaringly false or vitiated by some fatal technical defect like being barred by the law of limitation, meaning stale.

Khusboo pleaded that the ‘India Today’ comments were protected by her right to freedom of speech and expression guaranteed by the Constitution of India and those in ‘Dhina Thanti’ were not uttered at all. She seems to have issued a legal notice denying the comments.

Mr. Justice Regupathi frowned upon her arguments. He delivered a judgment on 30-04-2008 called “S.Khusboo versus Kanniammal”, reported in (2008) 2 MLJ 1358 (Mad), dismissing her petitions. The Judge found that ‘India Today’ carried the words of Khusboo saying that “in Indian Society, stuffed with conservative taboos, woman is gradually flapping her wings; that the society should get liberated from the thinking that women should not lose their virginity till marriage and that educated persons should not expect their life partners to be with virginity at the time of marriage”. He noted that she further stated that “if a girl is very serious about her relationship with her opposite sex, the parents should allow such relationship and that, while indulging in premarital sex, care should be taken to avoid pregnancy and venereal diseases.”

He also observed that “when a clarification was sought by a reporter of ‘Dhina Thanti’ that her statements would lead to cultural degradation, Khusboo questioned as to which culture they are referring to and asked as to how many men and women are there in Tamil Nadu who did not indulge in pre-marital sex”.

The Judge then laid down the law that, the defence taken by Khusboo that she was voicing her opinion believing it to be true and bona fide, which was an exception for defamation, related to facts that can only be verified through trial by the lower court and the High Court cannot quash the complaints on such grounds. Khusboo’s respite was limited to the Courts order that all the cases pending in various places would be clubbed together and tried by the Court of the Chief Metropolitan Magistrate, Egmore, Chennai.

The judgment of the High Court of Madras is a nice piece of legal literature except the fairly long digression in Paragraph 13, where the actress’s comments on pre-marital sex were given an extended treatment bringing in the concept of heterosexual co-habitation of couples outside marriage. It was unwarranted, having no nexus with the question whether the complaints could be quashed or not. More so, when her comments were not about the phenomenon of live-in partners but were about pre-marital sex. There is thus a mix up that could have been avoided.

Finally, Khusboo’s case landed in the Supreme Court of India and culminated in the juicy comments of the Judges of 23-03-2010, slurped up by the Media and recreated in various forms of sensual sensationalism to almost mean that the Judges had endorsed her views.

Fortunately for Khusboo, our Legal Reporters, as learned as her, if not less, do not know the distinction among comments made by judges while adjudicating the matter, reserving of the judgment and delivering the judgment in open Court. Except a few, all the news reports not only created an impression that the Supreme Court has already confirmed that there is no offence committed by Khusboo but went further to say that the Supreme Court has laid down the law through a verdict that co-habitation without marriage of persons of opposite sex and pre-marital sex were not illegal.

In this sardonic episode, were the Courts ever called upon to decide whether co-habitation of persons of opposite sex and pre-marital sex were legal or illegal? Not at all! Those were not the questions before the Court. Did the Supreme Court deliver any judgement in Khusboo’s case? No! It only heard the matter and reserved the judgment to be delivered later on. Does pre-marital sex attributed by Khusboo to the populace of Tamil Nadu have anything to do with the phenomenon of non-marital co-habitation of opposite sexes? No! Then how on earth did these false reports creep into the media and flashed the world over?

It’s because the Supreme Court of India provided the fodder for the indiscriminately news hungry media. It’s because adjudicatory procedures even in the highest court of the land are wanting in decorum. Because our Judges, only supposed to hear dispassionately, discuss with the counsel or pose questions strictly confining to the subject matters and then deliver the judgment also exhibit a penchant for talking and airing their views on even borderline issues. In umpteen instances the comments of the Courts extricated from the context are given publicity. Ultimately, the comments which are momentary flashes of emotion do not become part of the well considered decisions at all!

Did the presence of parties cause the ease? If the report of the Press Trust of India is to be believed, with goggles pushed over her forehead, Khusboo was relaxing in the front row of the Supreme Court of India, hitherto reserved only for Lawyers arguing cases, while the Judges waxed over her espousal of pre-marital permissiveness drawing parallels with the mythical Radha and Krishna and the media carried the words, the next day. Now it is to be seen what the judgment of the Supreme Court of India is going to be.

Will Khusboo have the last laugh!