“Freedom of individual is as necessary for the survival of society as it is for the egoistic ambitions of the individual.” - Justice Krishna Iyer, Supreme Court of India
Preksha Diwakar & Piyush Sharma[*]
In late 2012, the case of “Cannibal Cop” surfaced in New York where a police officer was charged with conspiracy to commit kidnapping. He was arrested after his wife discovered an extensive log of emails and chats on his computer, in which he shared photographs of a number of women, including his wife, friends and acquaintances and outlined his desire to kidnap, torture, rape, kill, and eat them. He argued that he was a member of Dark Fetish Net, a social-networking website where users role-play and discuss sexual fantasies that are considered unacceptable in mainstream culture and contended that the alleged conspiracy was merely fantasy role-play, with no intention of carrying out any of the gruesome acts he discussed online. He was granted a judgment of acquittal by Judge Paul G. Gardephe. The Judge wrote in his opinion that despite the highly disturbing and deviant nature of the defendant’s sexual interest, his chats and emails do not show his actual intention to commit or realise those fantasies.
Various other fantasy defence cases in the United States raise questions about violation of the freedom of expression as given under the First Amendment. Under the First Amendment, expression cannot be restricted merely because it may be offensive to some. There can be no denial of the fact that the freedom of speech and expression is absolutely sacrosanct in India as well.
India saw a rise in calls for registering complaints and prosecuting many users who have indulged in sharing pictures of girls and making lewd comments in private groups. The police registered complaints and started investigations, bringing in juveniles for questioning. The calls for prosecution of the people involved were mainly under various sections of the Penal Code, 1860 (IPC) dealing with modesty of women, including Section 354(A)(iv). Added in a 2013 Amendment, due to the circumstances after the 2012 Nirbhaya rape case, Section 354(A)(iv) states that any person making sexually coloured remarks will be guilty of sexual harassment. This section is very vague and all-encompassing as it doesn’t differentiate between sexually coloured remarks and privately expressed fantasies.
Having deviant thoughts and expressing them – does that call for prosecution, or is a person allowed to express such thoughts in private, in light of freedom of speech under Article 19(1)(a) and right to privacy under Article 21. In this blog post, the effect of Article 19(1)(a) and Article 21 on Section 354(A)(iv) will be analysed. Further, methods other than punishing sexual or deviant thoughts, like providing sex education will also be analysed.
Paradox of Sexuality & Its Expression
The subject of sexuality, in contemporary Indian legal narratives, carries a paradox that never garnered as much attention as it deserves to. The Supreme Court, in Navtej Singh Johar vs. Union of India, set an aim for India to embrace “a pluralistic and inclusive society” by decriminalising homosexuality. It was opined that the dignity of an individual encapsulates the freedom of speech and expression among other values and any damage to an individual’s sexual identity would tantamount to destruction of intrinsic dignity. At the same time, however, the law finds it difficult, almost repugnant, to make space for the instances where people actually explore and express their sexual desires. The actual process of coming to terms with one’s sexuality is far less romantic, much less ‘dignified’ than we envision and often involves extensive fantasizing, experimentation, and social interaction.
The Court, in Navtej Singh Johar, relied on various cases including Common Cause (A Registered Society) vs. Union of India wherein it was held that Article 21, the right to life and liberty, is meaningless unless it encompasses right to dignity which includes the meaningful expression of the human self. The freedom of expression guarantees double-fold liberty: the freedom of thought and the freedom to express one's thoughts. In the opinion of J.S. Mill, the liberty of expression and the liberty of thought rest on the same reasons and stand at almost the same importance. They are practically inseparable from each other. In his essay ‘On Liberty’, Mill characterised liberty as comprising of liberty of conscience, liberty of thought and feeling and absolute freedom of opinion and sentiment on all subjects. Further, he states that liberty involves freely exercising a choice, no matter how perverse or foolish it seems, without any external restriction, as long as what we do does not harm others. Interestingly, the same seminal work has been used by Justice S.A. Bobde in Justice K.S. Puttaswamy vs. Union of India to explain liberty and its confines. Mill’s essay makes an important yet overlooked observation that a person should have the liberty to express his thoughts even if they seem perverse to others.
One's thought are the source of all expression and expression is the realization of individual's earnest desires. Restricting expression of an individual’s sexual desires and fantasies amounts to restriction of thoughts and also results in the breach of essential rights to privacy and to dignity. Irrespective of the deviant nature of the thoughts, an individual should have the right to fantasize and express the fantasy at least privately.
Privacy of Choice
In 2017, the Supreme Court recognised the right to privacy in KS Puttaswamy. Justice S.K. Kaul makes an observation in the judgement under the heading Contours of Right to Privacy. He states that privacy is the key to freedom of thought and sometimes these thoughts are translated into speech but only to be confined to the person it has been made to. He uses the example that sometimes people might want to criticise a person but not make it known. This observation by the Justice Kaul emphasises the importance of freedom of thought and also the right to express it.
Situations presented in the introduction are not a far cry from the example used by Justice Kaul. If people wish to engage in exchange of their sexual fantasies by way of sharing publicly available pictures and privately commenting on them, such members of the private group do have the right to express their fantasies. Section 354(A)(iv) makes it a crime when sexual thoughts are expressed, without differentiating between privately expressed fantasies and speech made to defame or offend the modesty of a woman.
In the same judgement, another important aspect of right to privacy is mentioned – the privacy of choice. Privacy of choice is defined by Justice R.F. Nariman, in his opinion, as an individual’s autonomy to make his fundamental personal choices. He also adds that this right is found in Article 19(1)(A) read with Article 21. Justice D.Y. Chandrachud, in his opinion, observed that privacy includes the freedom to preserve personal intimacies, sexual orientation, etc. He further noted that privacy protects individual autonomy and recognises the essentiality of personal choices about vital aspects of one’s life. However deviant or immoral one’s private fantasies are, it is their personal choice under Article 21 read with Article 19(1)(a) to be able to express them privately.
The Birds & the Bees; A Solution
Crime against women in India has increased since 2013. This was the year which saw many sections being added in the IPC as a knee jerk reaction to the socio-political situation of the time. In 2013, it was reported that 3,09,546 FIRs have been filed under IPC in various sections related to crime against women. In 2018, the figure increased to 3,78,236. The problem is complex with many factors and curbing of sexual thoughts might not be the solution to it.
Comprehensive Sexuality Education (CSE), can be a part of the solution. CSE teaches about the physical, intellectual and social aspects of sexuality. It empowers people to develop respectful social and sexual relationships; helps them realise how their choices affect their own well-being and that of others; and ensures the protection of their rights.
The need for comprehensive and non-prejudiced sex and sexuality education was also outlined in the Justice Verma Committee report where it was added that it will go a long way in curbing violence against women. Interestingly, the committee formed in 2013 was constituted to recommend amendments to criminal law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.
The solution to the problems identified above is education and awareness about the critical role sexuality plays in every human being's life and it should be accepted as something ‘normal’, and not something which induces a knee-jerk reaction of disgust. UNESCO also comments on the same, stating that comprehensive sexuality education which is inclusive will play a key role in curbing crimes against women.
Various dimensions of life, including sexuality, have transitioned to cyberspace. However, the recognition by law, of freedom to express such sexuality is still at leisure. The interwoven rights of right to think and express and right to privacy allow an individual to think even the most repulsive thoughts and be able to express it at least privately. Rene Descartes famously proclaimed “cogito ergo sum,” which translates to English as “I think, therefore I am.” An individual’s thoughts are inherently linked with their dignity. Restriction on expression of thoughts merely because they are unconventional and offensive to some harms the dignity of an individual of freely being and expressing their self.
There is no silver bullet to solve the problems outlined in the post but the solution may involve, although not be limited to, compulsory sex and sexuality education. A potential reform may also lie in creating an exception of private expression of fantasy to Section 354(A)(iv), thereby giving equal space to freedom of expression as well as safety of women.
[*]Preksha Diwakar is a third-year student at National Law University Jodhpur (India) and Piyush Sharma is a fourth-year student at National Law University Jodhpur (India)