Moral policing and arbitrary arrests invoking sec 294, 292, and 268 of the Indian Penal Code have made the mockery of our democracy and justice system. Read on to know the complete picture
The ‘argumentative India’ is never tired of debates. And this is precisely what makes our country a vibrant democracy. Much as we hold dear our institutions, judiciary, constitution, etc., we never feel shy of questioning the rationale behind what has been going on. India on the cusp of new age is witnessing a tectonic shift. Our society is transforming. India of today is much more informed and feels much more emancipated. In the words of former Chief Justice of India, said way back in 1965 “The world is now able to tolerate much more than formerly, having become indurated by literature of different sorts.”
But those who see evil in everything try to intimidate those who do not see eye to eye with them. There have been a lot of cases of arbitrary use of law related to obscenity and the incidents of moral policing in the country. In December 2014, expressing concern over rise in the incidents of moral policing, a Delhi court has said that even as the public behaviour of individuals has to conform to social sensibilities, no one can be permitted to take over the state’s function. The observation came while awarding a life term to a gunman for firing at a man who was sitting in his car with a woman friend and drinking. The Delhi High Court has also expressed concern over the use of ‘coercive power of the state’ in arresting and charging people under sections 268, 292 and 294 in the case A & B vs State Thr. N.C.T. Of Delhi & Anr.
Is this self-vigilantism justifiable? How does law deal with the issue of moral policing? Do we have enough provision in law to deal with issue arising of public display of affection, nuisance and obscenity?
Let’s briefly list some incidents which led to arrests by the police on the ground of obscenity, as well as the cases of assault by self-proclaimed vigilante groups. According to media reports, way back in September 2009, an Israeli couple was arrested under Section 294 for kissing in public after they had been married the Hindu way at Pushkar Ghat in Rajasthan. A fortnight later, a magistrate slapped a fine of ` 500 on them for committing “an act of indecency.” Iin December that year the police arrested two of the employees of a star hotel in Chennai under Section 294 for allegedly permitting “obscene dance programme” after the pictures of youngsters dancing in the hotel was published.
In July 2012, a pro-Hindu organisation allegedly raided a local private home-stay and attacked about a dozen girls and boys alleging that they were holding a rave party.
In October 2014, activists belonging to Bharatiya Janata Yuva Morcha (BJYM) attacked a café in Khozikade after a television channel aired visuals of a young couple in the café engaged in public display of affection. This attack gave rise to Kiss of Love events all over India. But in November 2014 the proposed Kiss of Love event in Bengaluru had to be cancelled because the police denied permission saying it would lead to public display of affection and other obscene acts barred under the law.
And the Kerala High Court in December 2014 hinted that the alleged incident of moral policing at Kozhikode and the ‘Kiss of Love’ campaign launched as a reaction to it may have gone overboard.
Whoever, to the annoyance of others— (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. The punishment for such an act under this section is imprisonment for 3 months, or fine, or both.
Sec 294 unfortunately does not give a clear definition of the obscenity. So, how does one know whether the act is obscene or not in a court of law?
Even though maintaining that the word obscenity is really not vague because it is a word which is well-understood even if persons differ in their attitude to what is obscene and what is not, the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881) concedes: “The Indian Penal Code does not define the word obscene and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by courts and in the last resort by us.”
The Apex Court further maintained, “The test which we evolve must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not. None has so far attempted a definition of obscenity because the meaning can be laid bare without attempting a definition by describing what must be looked for.”
The law relating to obscenity is laid down in Section 292 of the Indian Penal Code, which came about, by Act 36 of 1969.
[292. Sale, etc., of obscene books, etc.—
[(Exception) —This section does not extend to-
The court, however, admits the present provision being so vague that it becomes difficult to apply it. “The purposeful omission of the definition of obscenity has led to attack of Section 292 of the Indian penal Code as being too vague to qualify as a penal provision’, says the apex court. The court accepts it a grey area and maintains that it is quite unclear what the provisions mean. In fact, Indian Penal Code on obscenity grew out of the English Law, which made court the guardian of public morals. Therefore, it is upon the discretion of the court to take a view on a certain matter concerning sec 294. The SC even feels that this discretion of the court must be subject to adequate law because it interferes with the sacred and sacrosanct – our constitutional rights. Such discretionary power is open to abuse.
Defining obscenity the Supreme Court in Samaresh Bose and Anr. v. AmalMitra and Anr. (1985) 4 SCC 284 said: “The concept of obscenity is moulded to a very great extent by the social outlook of the people who are generally expected to read the book. It is beyond dispute that the concept of obscenity usually differs from country to country depending on the standards of morality of contemporary society in different countries.”
Then the court went on to say in the same judgment that the judge should, therefore, apply his judicial mind dispassionately to decide whether the book in question can be said to be obscene within the meaning of Section 292, IPC by an objective assessment of the book as a whole and also of the passages complained of as obscene separately.
The SC has made it explicit that the Article 19 guarantees complete freedom of speech and expression but it also makes an exception in favour of existing laws which impose restrictions on the exercise of the right in the interests of public decency or morality that balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way.”
In Ajay Goswami v. Union of India (2007) 1 SCC 143, while examining the scope of Section 292 IPC and Sections3, 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986, the apex court held that the commitment to freedom of expression demands that it cannot be suppressed, unless the situations created by it allowing the freedom are pressing and the community interest is endangered. In Ranjit D. Udeshi v. State of Maharashtra the SC has observed, “Section 292, Indian Penal Code, manifestly embodies such a restriction because the law against obscenity, of course, correctly understood and applied, seeks no more than to promote public decency and morality.”
In the United Kingdom, way back in 1868, the Court laid down the Hicklin test in Regina v. Hicklin (1868 L.R. 2 Q.B.360), and held as follows:
“The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.”
The Supreme Court of India has time and again adopted the test of obscenity laid down in the Hicklin case. Like in Ranjit D. Udeshi v. State of Maharashtra (AIR 1965 SC 881, the SC based this as the fundamental test for determining the obscenity.
However, in K.A. Abbas v. the Union of India and Anr, the Supreme Court laid down: Our standard 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. Of late, the courts have felt that the Hicklin test is not correct test to apply to judge what obscenity is. Outside India, in Roth v. United States 354 U.S. 476 (1957), the Supreme Court of United States directly dealt with the issue of obscenity as an exception to freedom of speech and expression. The Court held that the rejection of “obscenity” was implicit in the First Amendment. The Supreme Court of Canada in Regina v. Butler (1992) 1 SCR 452, held that the dominant test is the “community standards problems test”.
Interestingly, in May 2014, in Aveek Sarkar & Anr. V State of West Bengal & Ors, the Supreme Court has discarded the Hicklin test and has opined that issue must be judged with respect to contemporary mores and national standards. The apex court has said “We are also of the view that Hicklin test is not the correct test to be applied to determine what is obscenity. Section 292 of the Indian Penal Code, of course, uses the expression ‘lascivious and prurient interests’ or its effect… We have, therefore, to apply the “community standard test” rather than “Hicklin test” to determine what “obscenity” is.”
The court then says that a bare reading of Sub-section (1) of Section 292, makes clear that a picture or article shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest, and (iii) it tends to deprave and corrupt persons who are likely to read, see or hear the matter, alleged to be obscene. Once the matter is found to be obscene, the question may arise as to whether the impugned matter falls within any of the exceptions contained in Section.
An article in the media commenting on this judgment says, “Apart from few critical nuances mentioned, the decision of the court can be hailed on the ground that it has taken an enlightened approach which is essential for Indian society. Hopefully the judiciary will now proceed on the grounds of rationality while determining the issue of obscenity rather than those of purified and sanctimonious versions of Indian culture which find reflection only in the views of extremists.” It also says, “The decision proceeds with a basic principle that the law of obscenity shall be evolved with the simultaneous evolution of the society. It cannot be judged with archaic views which seek to demolish the growth of a legal discipline, but should be characterized and contextualized in lieu of modern trends and development.
The court has very rightly observed in the same judgment, which related to a picture of Boris Becker with his wife, carried in the Sports World in 1994, “We are, in this case, concerned with a situation of the year 1994, but we are in 2014 and while judging as to whether a particular photograph, an article or book is obscene, regard must be made to the contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons.”
Another law which has been used by the law enforcing agency in such cases is Sec 268 of IPC. Under Section 268 it is mentioned that ‘a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or advantage.’
Under Section 133 of the Code of Criminal Procedure, 1973 the magistrate has the power to make conditional order requiring the person causing nuisance to remove such nuisance. Any person committing public nuisance shall be punished with a fine of ` 200 as per the provisions of section 268 of IPC after filing a complaint to the magistrate.
A public nuisance is an act of commission or omission affecting public at large. This act of omission or commission must interfere with the enjoyment of rights of the members of society. It should interfere with health, safety, comfort, convenience, public order or morality. Public nuisance must result into both danger and injury. It must seriously also try to degrade public morals. The Court has observed in Smt. Ranjana Devi & Anr.V Naurang Lal & Ors that for Section 268 IPC the requirement is that it must necessarily cause injury.
It is interesting to see how this section could be slapped by the Delhi Police to the couple taking pictures in the metro station. No wonder then the Delhi High Court said in the instant case, A & B vs State Thr. N.C.T. Of Delhi & Anr, while delivering the judgment, “It is inconceivable how, even if one were to take what is stated in the FIR to be true, the expression of love by a young married couple, in the manner indicated in the FIR, would attract the offence of “obscenity” and trigger the coercive process of the law.
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