Indian Penal Code (IPC), 1860 vide Section 294 states that “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 3 months or with fine or with both.”
Now the twist is that here what is “obscene” not defined. Which puts an open end for interpretation.
Cambridge Dictionary defines it as offensive, rude, or shocking, usually because of being too obviously related to sex or showing sex.
For having a better understanding the landmark case of “Zafar Ahmad Khan v The State”,[3] the Allahabad High Court held that the element of causing annoyance to others must be established. An act of uttering the obscene words in public places which can cause annoyance to the general public will bring the conviction against the accused. The provision for the same has been provided within the meaning of Section 106 of Criminal Procedure Code, 1898 which is identical to the same section of 1973 code.
What is sad here, women being touch inappropriately in buses or any public area does not invite moral policing but the simple act of kissing you partner with consent would. Many at times one would have come across the news where couples are caught kissing by police on Valentine’s Day all in the name of law and order.
Celebrities are also not spared from this. In 2007 renowned Hollywood actor Richard Gere kissed Bollywood star Shilpa Shetty at an AIDS awareness event in New Delhi. An arrest warrant was issued by a Rajasthan court against Gere and obscenity charges framed against Ms. Shetty.[1]
In India, kissing is considered to be obscene and is also considered to be immoral according to the customs. The modernists also call kissing in public as ‘Public display of affection’, popularly known as PDA. Even Supreme Court had, in several judgments, chose to iterate that the notion of obscenity may change with the passage of time.
the Apex Court has said that no suit can be brought against the act of consensual kissing, and Section 294(a) of the IPC clearly states that the act such be of such an extent that it could cause annoyance to others. Moreover the Supreme Court in the case of “S.Khushboo v.Kanniammal&Anr”[2] held that while determining the obscenity of an act the community standards should be taken into account, the intensity of such standards may vary from place to place for example in the metropolitan areas it might be considered as an acceptable act, whereas on the contrary in some places it could be brought within the sphere of indecent demonstration.
There are certain cases where test of obscenity is also laid down. In The Queen v. Hicklin [3] Cockburn C.J. laid down the test of ‘obscenity’ in these words:
“….. the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences”. This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in Ranjit D. Udeshi v. State of Maharashtra [4]. In Samuel Roth v. U.S.A. [5]. Chief Justice Warren said that the test of ‘obscenity’ is the “substantial tendency to corrupt by arousing lustful desires”. Mr. Justice Harlan observed that in order to be ‘obscene’ the matter must “tend to sexually impure thoughts”.
Moreover in the case of “A and B vs State the NCT of Delhi” it is held that hugging and kissing forms a part of freedom of speech and expression which is the legit source of showing love and compassion towards your partner and hence are protected under Article 19(1)(a) of the Constitution of India.
[1] Satyendra Pratap Singh, kissing in public what the law says, world of justice, https://worldofjustice.in/justice/kissing-in-public-in-india-what-the-law-says/
[2] Criminal appeal 914/2010@SLP.
[3] 1868-3-Q.B. 360 at 371
[4] AIR 1965 SC 881 at 887
[5] (1957) 354 U.S.476
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