Legal Condemnation of Moral Policing in India

Free speech’s protection vis-à-vis the social fabric of the nation

ABSTRACT

With the tremendous development in the field of telecommunication, dissemination of ideas has become easier than ever. In India, with corruption penetrating into every possible aspect of daily life, wide publicity of socially important issues becomes all the way more important. This results in the growth of public opinion which in turn pressurises the Government to take actions (however, credibility and efficiency of these actions still remain doubtful). Undoubtedly, this has been possible due to greater capacity of people to interact with each other. However, this enhanced capacity also exposes one’s ideas to criticism like never before. On a positive side, this dichotomy is essential for the realisation of truth of the matter. Its flip side, however, is exposed when the ideas intersect the radar of a category of “public spirited” persons a.k.a. the moral police. They often resort to acts of violence and sometimes use the legal machinery to curb acts which are deemed “immoral” by them. Through this essay, I try to analyse some instances of moral policing in India with respect to their consequences. It highlights the need for tolerance, citing certain judgments of the Supreme Court of India. It tilts in favour of protection of expression of diverse views, however “bizarre” or “ridiculous” they may appear, as long as they remain outside the purview of article 19 (2) of our Constitution.

I thank Prof. Pratap Salunke for his enriching insights without which this note would be incomplete.

DIVERSITY OF THOUGHTS

Freedom of speech and expression guaranteed in the Constitution of India is a bulwark of democracy. It has been regarded as first and foremost of all liberties which a person is entitled by the virtue of their being human. Importance of this right is well settled and need not be detailed here. Also, since the protection of this right is indispensable to the sustenance of democracy and to secure development of citizens, the threshold to curtail the right is very high. It is only for the grounds mentioned in article 19 (2) can the freedom be curtailed. Besides, the restriction has to be reasonable and must be imposed by a law. The grounds mentioned in the restrictive clause can be divided in two categories: National security and social order. Grounds touching “social order” include decency and morality, defamation, incitement to an offence, contempt of courts, etc.

India is a country of great diversity. Diversity is something we proudly celebrate. We cherish the combination of languages, cultures, arts and crafts, geography, etc. of different peoples of India. This feeling of joy and celebration is inevitable if we want to sustain ourselves as a federation, or quasi-federation to be more technical. It is because of this sense of oneness that the people are woven into a common thread and called a nation. It is this abstract concept that gives hopes for the promotion of constitutional ideal of fraternity. But, diversity brings with itself certain practical problems. These problems arise from a common stream and that is the difference in thoughts. We as individuals have a great effect of surroundings on our personalities, a fortiori in India, where a large chunk of population is still illiterate and far from scientific know-how. By scientific know-how, I do not mean the knowledge of pure sciences. It is the rational thinking, the process of reasoning, which most of us are devoid of. Now by stating “most of us” I do not want to meet the same fate as Justice Markanday Katju (in reference to the entire controversy over his remark that 90% of Indians are fools), but the scope of this discussion demands that I must use these words. It is to be borne in mind that literacy cannot be the only criterion for judging a person’s rational standing. Literacy is merely the ability to read and write, and going by the definition, it is difficult to relate literacy with reasoning ability. So is it the education that makes persons rational enough to bear the fruits of democracy? Certainly it is! Now, it is not the subject of this discussion to dissect the controversial question whether the education that is offered in India is really worthy of being called so. Based on my personal experience (taking together the years spent in school and then in college) I can say with some amount of certainty, that it isn’t. However, coming back to the topic, it is conspicuous that the level of education and the dwelling of human mind upon reasoning capabilities differ to a great extent among people. We have instances in India of all types of superstitions being practiced, human sacrifices being made, derogated status of women, female foeticide…… and the list never ends! With such huge amount of disparity in thinking and beliefs, is it even reasonable to expect consensus on topics of everyday importance? Dissent is bound to be there when there is no common thread of thoughts that could streamline the minds of people. 

Having set the base, I would now like to analyse the problem associated with moral policing in India with aid of the legal attitude reflected through judgments of the Supreme Court of India.

RECENT INCIDENTS

Rapid growth of technology has made flow of information easier than ever. Spurt of social networking websites and news channels has given a big opportunity to public figures to express their “public spirited” ideas before the masses. These ideas, as has been set out in earlier paragraphs, are again bound to be drastically different based on the social engineering of our country. Hence, some of these ideas often stir controversy and the influx of more ideas from all corners of this country only helps it grow. Such controversial instances range from Khusboo’s case[1] to the views of members of Khap Panchayats in Haryana[2], from the observation of a Karnataka High Court’s Judge[3] to the statements of Mumbai Police Commissioner[4]. Media reports and internet are flooded with such instances, which are more popularly referred to as “moral policing”. The moral brigade constitutes a class of self-acclaimed “moralists” with a self-imposed duty to improve the “degrading” morals of the society. Now, moral policing in India is not restricted to merely being verbal. Brutal honour killings decreed by the Khap Panchayats[5], Mangalore incident[6], beating down of students at pubs[7], etc. are instances that have gathered much highlight off late. However, we do have sufficient laws (at least in theory, implementation still remains a big question!) to deal with such “physical manifestation of moral policing”. These instances are conveniently covered under various sections of the Indian Penal Code, 1860. But what about the moral policing by way of frivolous legal actions? Harassment associated with such legal actions acts as an equally effective deterrent upon the victims as physical violence.  Agreed that my statement is highly improper, illogical and preposterous in the circumstances, but is it grave enough to attract a legal action? In order to respond to that, it would be pertinent here to refer to some relevant observations of the hon’ble Supreme Court of India.

THE KHUSHBOO CASE

A popular South-Indian actress found herself in the midst of great controversy when she expressed her views on pre-marital sex. According to her, it was ok for girls to indulge in pre-marital sex after taking precautions to prevent unwanted pregnancy and sexually transmitted diseases. The statement landed her in a pile of as many as 23 criminal complaints which were later quashed by the Supreme Court. In this case[8], it was alleged that remarks of the appellant in relation to pre-marital sex are insulting to the modesty of women and hence fall within section 509 of the Indian Penal Code. The Court, while dismissing this contention held[9]: “Similarly, Section 509 IPC criminalises a 'word, 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 appellant had stated in a written form.”

It was also alleged in the same case that the remarks were an abuse against the dignity of the Tamil women and that they had grossly affected and ruined the culture and morality of the people of the State. Sidelining this argument the Court held[10]: “Clearly the appellant was not alone in expressing such a view, even though it may be unpopular or contrary to the mainstream social practices….there is no prima facie case for any offence.”

The Court also emphasized the need for tolerance for unpopular views in the following words[11]: “Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as 'decency and morality' among others, we must lay stress on the need to tolerate unpopular views in the socio-cultural space. The framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry…….we must also promote a culture of open dialogue when it comes to societal attitudes. 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…..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. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellant's remarks. If the complainants vehemently disagreed with the appellant's views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the freedom of speech and expression.”

This case is an apt example to be presented in this scenario. While her views appear to be sound and founded on logical principles to a section of masses, there is another section that does not subscribe to this school of thought. According to them her statements were an attack on sanctity of marriage and amounted to defilement of pious Indian culture. Diversity in these opinions denotes nothing but the result of juxtaposition of various sections of masses having different cultural backgrounds and mind-sets. This is an inevitable process especially with respect to the transitional stage our country is experiencing. The process is however, extremely important for the sustenance of democracy and the constitutional ideals which we cherish. I as a citizen of this country must be free to express my opinions on burning topics of the day, regardless of the fact that they are in contrast to the popular views. My expression must only bow down to a right, the exercise of which deserves preference over my freedom. This very ideal is reflected in the Constitution of India which sets the rule that the freedom can only be limited in the interests of national security or public order.  The same dictum finds mention in judgment of the Court in Khushboo’s case, as: “Thus, dissemination of news and views for popular consumption is permissible under our constitutional scheme. The different views are allowed to be expressed by the proponents and opponents. A culture of responsible reading is to be inculcated amongst the prudent readers. Morality and criminality are far from being co-extensive. An expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.”

ARTISTIC EXPRESSION UNDER THE SWORD

The Bandit Queen case

It is not uncommon in India for an artist to find himself indulged in protests and legal actions soon after an off-beat piece of artistic expression is made, be it movies depicting reality or novels with emphasis on sexuality. Shekhar Kapoor’s critically acclaimed movie “Bandit Queen” met with fierce controversy on account of realistic depiction of atrocities (multiple rapes and harassment) on a village girl (Phoolan Devi) that led her to become one of the most dreaded dacoits in India. The movie contained scenes of frontal nudity and swear words, spoken all over India, were used. Although the movie was granted “A” Certificate by the Censor Board, some persons objected to the release on grounds of obscenity and indignity to women. Finally the Supreme Court while dismissing this contention held[12]: “First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men, is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinema-goer's lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to was not at Phoolan Devi's nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shared of dignity, Nakedness does not always arouse the baser incident….Adult Indian citizens as a whole may be relied upon to comprehend intelligently the message and react to it, not to the possible titillation of some particular scene.”

Defending art against the morally depraved

Another contention that was made in the above mentioned case was that the scene was obscene and was likely to cause moral depravity among the viewers. To dismiss this contention, the Court cited the following observation of Hidayatullah, C.J. in another case[13]: “Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast area for creative art to interpret life and society with some with some of its foibles along with what is good”. From this passage, approach of the Court is clearly revealed that a movie or any other form of artistic expression is to be judged from the point of view of a man of ordinary prudence and not of a man who is easily rendered depraved by anything sexually explicit. Hidayatullah, C.J. went on to say in the same case[14] thus: “If the depraved begins to see in these things more than what an average person would, in much the same way, as, it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped….Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral”. In another case[15] insisting upon the need to protect art from those who are easily offended by explicit matter, Krishna Iyer, J. observed thus: “The world's greatest paintings, sculptures, songs and dances, India's lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and prescribe heterodoxies.”

Another thing that bears importance is that a piece of art is to be viewed in its entirety along with the contemporary circumstances. These circumstance include contemporary social mind-set, age, social and educational status of the target audience, etc. There can be no straight forward formula to differentiate between sexually explicit content from obscenity. However, a thin line exists whereby even a matter, sexually explicit and vulgar, may well be within the artistic protection. It is pertinent here to refer to what Krishna Iyer, J. had to say[16]: “Art, morals and law's manacles on aesthetics are sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State-made strait-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics.”

When publication of a novel was assailed[17] on the grounds of it containing slangs and description of sex and female bodies, the Supreme Court drew a distinction between vulgarity and obscenity. The Court observed that vulgarity may cause disgust, revulsion or sometimes boredom to those exposed but it does not corrupt their morals, whereas obscenity goes ahead and has a depraving effect on those whose minds are open to such immoral influences[18]. Holding that the novel might be called vulgar but not obscene, this is what the Court had to say: “On a very anxious consideration and after carefully applying our judicial mind in making an objective assessment of the novel we do not think that it can be said with any assurance that the novel is obscene merely because slang and unconventional words have been used in the book in which there have been emphasis on sex and description of female bodies and there are the narrations of feelings, thoughts and actions in vulgar language.”[19]

Above mentioned all cases pertain to art forms which were assailed on account of containing sexually explicit matter. However, condemnation of art is not limited to this alone. An interesting example appears when a book written by an author of international repute, James Laine, became the subject of such indignation. He wrote a book on Shivaji, an ancient Indian king, celebrated all over the country and particularly revered in the state of Maharashtra. The book contained instances from Shivaji’s life, collected after a detailed research by the author with aid of the famous Bhandarkar Oriental Research Institute (BORI) in Pune. After, the publication of the book in India, four historians objected to some of the contents of the book and asked the publisher to retract the objectionable content and tender an apology for the same. Immediately thereafter, all copies in circulation of the book were withdrawn. However, the institute (BORI) that had helped the author was ransacked and several precious old manuscripts were destroyed by members of one Shambhaji Brigade of Pune. Also, an FIR was lodged against the author, printer and publisher of the book in respect of offences contained in sections 153 and 153-A read with section 34 of the Indian Penal Code. Now, what was achieved by destroying old manuscripts of vital importance is beyond comprehension; what is even more shocking is that the FIR did not even disclose the offence. There was no description as to the promotion of hatred, ill will or enmity between different religions, castes, social, linguistic groups, etc. as is the essence of section 153A (not to mention that section 153 was not even remotely relevant as the same punishes provocation with an intention to cause rioting). Finally, the investigation was quashed by the Supreme Court[20]. This whole episode, however, warns foreign authors from publishing their research in India as they may have not witnessed such hue and cry elsewhere.

SPARK IN A POWDER KEG: TEST FOR CURTAILING EXPRESSION

A case that is frequently cited, deserves mention here. It is S. Rangarajan v. P. Jagjivan Ram[21], decided in the year 1989. Embarking upon “reasonable restriction” in article 19 (2), the Court observed: “...Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a 'spark in a powder keg’.”

It may be argued that these statements violate sentiments or emotions of people. However, a little analysis would show that this argument is far-fetched. While it is possible that sentiments or emotions of few may be disturbed, that by itself cannot be a criterion to restrict the freedom to express. This argument is espoused by the response these comments attract from the masses. Many times statements of this category are ridiculed and replied to in a jocular manner. Such comments are often so preposterous so as to be called as “ludicrous” rather than “offensive”.

THE MAN ON THE TOP OF A CLAPHAM OMNIBUS: standard of a man of common sense

The Supreme Court has repeatedly held that the standard to be applied for judging the impugned expression must be of a man of ordinary prudence. It was way back in 1947 when Vivian Bose, J. held[22]: “…the Court observed that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. It is the standard of ordinary reasonable man or as they say in English Law, ‘the man on the top of a clapham omnibus’". Another observation of the Court, in a case previously mentioned, explains the position on the same footing, as: “...The standard to be applied by the Board or courts for judging the film should be that of an ordinary man of common sense and prudence and not that of an out of the ordinary or hypersensitive man.... The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue.... Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1) (a)can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance of the views of others. Intolerance is as much dangerous to democracy as to the person himself.”[23]   

WHERE DO WE STAND?

The question whether an expression can be curtailed depends upon the question whether it violates the constitutional mandate enshrined in article 19 (2), or in the context of this discussion, whether it offends the ideals of public order, decency or morality. Now, this question is a question of law, or as Salmond would put it[24], a question of judicial discretion. The judiciary exercises its discretion considering the societal mind-set and requirements of the nation. This is particularly so in the case of constitutional interpretation where the analysis of social fabric of the country becomes inevitable.[25] Having read observations of the Supreme Court of India in the contemporary case-law, it may be concluded that tolerance is the only answer to diverse views on matters of everyday importance. It is to be borne in mind that criticism of one’s actions or thoughts by logic and reason is healthy for the society but same is not the case when these ideas are met with the consequence of violence, law-suits or criminal complaints. The latter shakes the very foundation of “free debates”[26] upon which a democracy is based by threatening the expression of ideas that are unconventional or unpopular. Human history shows that the entire progress made by the natural and social sciences since the advent of mankind has been the result of ideas which were considered as unpopular or unconventional by contemporary societies. Albert Einstein’s view regarding Quantum Physics was treated as unpopular due to its contrast with Newton’s theories. The same has been the case with the development of jurisprudential thought from divine law to state-made law and finally to people’s acceptance of law. The point is that it is acutely necessary to protect expression of ideas and beliefs that are considered out-cast by a section of society. Further, while responding to a view that seems “immoral”, we must give a thought to our notion of morality, because rationality and morality may not coincide. They often do not. At one time, the concept of sati[27] was deemed moral until the British abolished it. Same is the case with child marriage and numerous other practices that are prevalent even today. It is everyone’s right to protect their morals, culture and values, but too tight a clinging may prove detrimental. To make progress, it has been inevitable for the mankind to leave old conventions and adapt new ideologies. And in order to achieve that, criticism of the present system of ideas is the first step. From the perusal of above mentioned incidents it appears that either the moral brigade personnel have some ulterior motives (mostly political) or they are simply hypersensitive. In either case, their acts in the garb of moral refinement need to be tackled. However, actual change cannot be expected soon, given the low level of intellectual development of people. Availability of education itself is a rare phenomenon, let alone its reforms. I would conclude the essay by mentioning a recent interesting incident. Speaking in the renowned Cannes International Film Festival this year, a popular actress of the Indian film industry said that India was “regressive for women” and a “depressing” place to be.[28] She was widely criticised for demeaning India before the world. Whatever her intentions might be behind what she said, the Brihanmumbai Municipal Corporation which oversees civic services in the city of Mumbai tried to prove her right by banning mannequins displaying lingerie in the city arguing that they insight men to “sex crimes”[29].