Case for repealing S.294(a) IPC

As India's vigilante police threaten to punish public display of affection (PDA)in Karnataka and elsewhere by seeking to impose their own versions of Indian culture, it is perhaps time to examine the relevance of S.294(a) IPC, which is probably the appropriate provision to deal with PDA. S.294(a), IPC, says whoever, to the annoyance of others, does any obsecene act in 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.

As I was curious to know how often this provision has been invoked by the Courts to sustain prosecution or convictions, I found some interesting results. The Delhi High Court in a recent case, stayed further proceedings, and observed: "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."

Even in this case, however, it appeared as if the Court might have found it difficult to stay the proceedings, had it not been because of the fact that the couple were married, before they were caught by the police for PDA under this section, and that the police did not name in the FIR any complainant who were "annoyed" by the act. As will be clear, in many instances of PDA, the couple might not have been married, and there would always be available volunteers of vigilante police who could testify that they were sufficiently annoyed by the PDA. Does it mean there is indeed a legal basis for harassing those who indulge in PDA?

My quick search on the JUDIS site revealed that the Supreme Court dealt with at least one case under S.294. It is not clear whether the offence was under S.294(a) or (b), as the judgment does not reveal the facts of the case. Even in this case, the Court was critical of the lower courts' decisions to equate S.294 offence with moral turpitude, and observed as follows: "They should have been sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294 IPC on today's society and its standards, and its changing views of obscenity. The matter unfortunately was dealt with casually at all levels."

In another case, the Kerala High Court observed that the performance of cabaret dance devoid of nudity and obscenity, judged according to the standards indicated was permissible, and was not in any way liable to be banned or prevented.

The outcome of Shilpa Shetty case in the Supreme Court will be of interest, as she and Richard Gere have obtained stay of arrest warrants against them for PDA under this very provison. Whatever the outcome, there is indeed a case for repealing S.294(a)if only because it is irrelevant, and provides legitimacy to vigilante policing, besides seeking to impose unilateral cultural values on everyone.

Moral policing or plain hooliganism

I am sure a lot of our readers have been following the terrible incidents in Mangalore. I want to raise two very specific issues in this post.

1. The media, the government and a lot of other commentators are refering to the violent attacks in Mangalore as a form of "moral policing", albeit violent. I find this very objectionable. The phrase "moral policing" attaches some sort of moral legitimacy to the act and only questions the act if it becomes violent. What the Mangalore attackers did and a lot of other misguided mobs are doing in India on a regular basis is nothing but sheer hooliganism with the intention of causing terror and gaining political mileage (and not necessarily in that order). There is no, and cannot be any, moral legitimacy attached to such acts by characterising such acts as "moral policing". I think we need to recognise these actions for what they are- plain and simple hooliganism- and stop using the word "moral policing". I hope the police, political class and civil society take such events more seriously than they currently do and treat them as what they clearly are- a threat to our fundamental values.

2.What is the difference between the Mumbai attackers and the Mangalore attackers? Despite being aware of the perils of comparison, I think the later constitute a more serious problem for us as a society. Even if one is able, at some unbelievable societal & philosophical level, to reconcile a ghastly incident like the Mumbai attack as an act perpetrated by "foreign elements", it is impossible to reconcile the Mangalore attacks. After all, the Sri Ram Sena is an organisation formed by Indians and supported by other Indians, including a number of mainstream political and non-political actors. The LeT and Ajmal Kasab are not. Failure to control and prevent incidents like the Mangalore attack is certainly a more serious challenge to our society.