Free sex? Or free speech?

S Gurumurthy
First Published : 03 Apr 2010 11:17:00 PM IST
Last Updated : 03 Apr 2010 12:33:57 AM IST

Supreme Court legalises premarital sex”. “Live in relationships and premarital sex are fine: SC”; “Premarital sex is okay, says Supreme Court”; “Sexual revolution as Supreme Court sanctions co-habitation”. This was how leading newspapers had headlined what three judges of the Supreme Court orally had said in the court on March 23, when they dismissed the Special Leave Petition filed by a famous cinema actress from Tamil Nadu to quash the prosecutions against her for her remarks on pre-marital sex. Famous in Tamil Nadu, she had become world famous after she touched the global subject of premarital sex.

Two things must register first. One, oral remarks of judges need not form part of the judgement of the court. Lawyers cannot cite newspaper reports as precedents in courts later. It is only what the judges say in a written judgement that becomes the law of the land. What the judgement of the court is on a petition filed by the Tamil actress is not known as yet. But the newspapers had made out that a judgment okaying pre-marital sex has been delivered by the Supreme Court! Live in partners beware! It is only an oral remark by the judges; it carries no value in law. Read the judgement when it comes to know whether the judges had said in the judgement what they had orally said in the court before celebrating. Two, the issue in the petition of the actress is not whether premarital sex is right or wrong, but, whether she has offended any law by saying that pre-marital sex is okay. The issue she had raised was about the right to free expression, and not the right to free sex. How the judges, as reported, spoke on a subject which could not be an issue in the petition is not clear. Even if the judges wrote an order to the effect on an issue not before the court that would be regarded as obiter dicta (a non-binding opinion). But the actress herself does not seem to be confused by newspaper reports. She seems to know clearly what she had gone to the highest court for — to assert her right to express her opinion on premarital sex. Feeling vindicated she says, “Supreme Court’s direction clearly shows freedom of speech does exist in India”. So much for the spate of reports that the Supreme Court has okayed pre-marital sex.

The next, and the most important, question is whether the Supreme Court, which can at best say that pre-marital sex is unobjectionable, has the authority to make it acceptable. Many unobjectionable things in law are unacceptable in the society. All that the Supreme Court can do is to ask, as it has: “when two adult people want to live together, what is the offence? Does it amount to an offence? Living together is not an offence. It cannot be an offence”. It is again part of the oral exchange between the judges and the counsel arguing against the actress. See what the counsel arguing that the actress should be punished for advocating premarital sex had told the court according to media reports. “The argument of the counsel was that her comments allegedly endorsing pre-marital sex would adversely affect the minds of young people leading to decay in moral values and country’s ethos”. But see what the judges had asked him in response, according to the media. “Please tell us what is the offence and under which section. Living together is a right to life”, implicitly referring to Article 21 that makes right to life and liberty a fundamental right.

By their oral remarks, the judges seem to have impliedly made it clear that the court is not concerned with “moral values” or “country’s ethos” which seemed to be the anxiety of the arguing counsel. But what the court seems to be unconcerned is unfortunately what the society is not only concerned with, but apparently lives by and even lives on. Laws or constitutions do not — in fact cannot — form societies. On the contrary, they may deform them in the name of reforming them, as it has happened now in much of the West, with consequences that are becoming unmanageable. Take the case of the US, which until a year ago, was the unfailing benchmark for our intellectuals and institutions including, in some cases, courts.

The 2002 National Survey of Family Growth in US found that more than half of all women aged 15 to 44 had lived with an unmarried partner. The result is that today, in the US, the number of single parent households is in excess of 50 per cent and more than four-fifths of them are fatherless and mother-led. This resulted in a research book titled Fatherless America in late 1990s. The proportion of children living with a never-married parent rose to 42 per cent in 2001, from four per cent in 1960. But, the growth in live-in relations in the US has less to do with the rights of the individuals as is normally thought here. It has more to do with the decline of traditional marriages and the rise of contractual marriages imposing huge cost of divorce. More than half the first marriages in US end in divorce! Couples in the US with the tenacity to try a second one, found that more than two-thirds of the second ended in divorce!! If still some further energy were left to have a go at the third, three-fourth of that too ended in divorce!!! The decline of weddings is the beginning of unwed lifestyle, not the other way round. All this started in the US with the kind of views — which the Tamil actress had expressed and the Supreme Court did not find unobjectionable — becoming fashionable in US in 1970s and turning socially legitimate later. This erosion was first seen, therefore dismissed — as it is happening here now — as just a moral and cultural issue which was not worth in modern times. But it has now become a huge economic issue in US with uncared for elders, under-cared children, unsupported unhealthy, plummeting savings, bankrupt households, soaring state subsidies, social and health security bill threatening nation’s solvency — all transforming the US from being the biggest lender to the world in 1980s to becoming the greatest borrower from the world today, besides topping in crime rate and jailed population in the world. The global meltdown is not just the US economic meltdown; it is equally a US social and moral meltdown.

If this had not happened in traditional Asian societies, it is because they have struggled to maintain values that nourished relations and families and respected the society. Therefore, the question is not what is not bad, as the judges have asked, but what is good, which they have left unasked.

(To be concluded)

(Reductio ad absurdum will return next week)