S Khushboo Vs Kanniammal & Anr

Hon'ble Supreme Court of India observed as
In order to decide this case, it wil not be proper for us to either condemn or endorse the views expressed by the appel ant. 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.

However, such forms of judicial review can be exercised to prevent a miscarriage of justice or to correct some grave errors that might have been committed by the subordinate courts.

Perusal of the complaints reveals that most of the al egations have pertained to offences such as defamation (Sections 499, 501 and 502 IPC), obscenity (Section 292 IPC), indecent representation of women and incitement among others. At the outset, we are of the view that there is absolutely no basis for proceeding against the appealant in respect of some of the alleged offences.
For example, the Act, 1986 was enacted to punish publishers and advertisers who knowingly disseminate materials that portray women in an indecent manner. However, this statute cannot be used in the present case where the appellant has merely referred to the incidence of pre-marital sex in her statement which was published by a news magazine and subsequently reported in another periodical. It would defy logic to invoke the offences mentioned in this statute to proceed against the appel ant, who cannot be described as an àdvertiser' or `spublisher' by any means. Similarly, Section 509 IPC criminalises àword, gesture or act intended to insult the modesty of a woman' and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act. Clearly this offence cannot be made out when the complainants' grievance is with the publication of what the appel ant had stated in a written form. Likewise, some of the complaints have mentioned offences such as those contemplated by Section 153A IPC (`Promoting enmity between different groups etc.,') which have no application to the present case since the appellant was not speaking on behalf of one group and the content of her statement was not directed against any particular group either.
Coming to the substance of the complaints, we fail to see how the appel ant's remarks amount to òbscenity' in the context of Section 292 IPC. Clause (1) to Section 292 states that the publication of a book, pamphlet, paper, writing, drawing, painting, representation, figure, etc., will be deemed obscene, if - It is lascivious (i.e. expressing or causing sexual desire) or Appeals to the prurient interest (i.e. excessive interest in sexual matters), or If its effect, or the effect of any one of the items, tends to deprave and corrupt persons, who are likely to read, see, or hear the matter contained in such materials.

Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have on the minds of the reader. ....
At no point of time appellant described the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader.

Furthermore, the statement has been made in the context of a survey which has touched on numerous aspects relating to the sexual act or said anything that could arouse sexual desires in the mind of a reasonable and prudent reader.
This cannot be construed as an open endorsement of sexual activities of all kinds. If it were to be considered so, the criminal law machinery would have to take on the unenforceable task of punishing all writers, journalists or other such persons for merely referring to any matter connected with sex in published materials. For the sake of argument, even if it were to be assumed that the appel ant's statements could encourage some people to engage in premarital sex, no legal injury has been shown since the latter is not an offence.
accused must either intend to harm the reputation of a particular person or reasonably know that his/her conduct could cause such harm.
24. With regard to the complaints in question, there is neither any intent on part of the appel ant to cause harm to the reputation of the complainants nor can we discern any actual harm done to their reputation. In short, both the elements i.e. mens rea and actus reus are missing.
It is not the task of the criminal law to punish individuals merely for expressing unpopular views.
Morality and Criminality are not co-extensive. In the present case, the substance of the controversy does not real y touch on whether premarital sex is social y acceptable. Instead, the real issue of concern is the disproportionate response to the appellant's remarks.

It is, therefore, not only desirable but imperative that electronic and news media should also play positive role in presenting to general public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get unnecessary publicity for its own paper or news channel. Such a tendency, which is indeed growing fast, should be stopped.

We are saying so as without knowing the reference in context of which the questions were put forth by us, were completely ignored and the same were misquoted which raised unnecessary hue and cry.

33. We hope and trust in future, they would be little more careful, responsible and cautious in this regard.