Lawmatters.in

There’ve been a number of instances of late in urban areas about morality and the law. One which was widely discussed was the Mangalore incident where persons with political affiliations seem to have assaulted women who were drinking in a pub. Apparently, they were acting as the moral police although it isn’t clear why drinking was considered immoral or how they could possibly be policing anything or anyone since drinking per se is not ordinarily illegal.

Nonetheless, there were people who spoke of vigilantes taking (non-existent) law(s) into their own hands. The story was covered by every newspaper, TV channel and almost every blog. And everyone against women drinking spoke long and loud about its being against Indian Culture.

Soon after, there was another report of a PDA which came from Delhi. This one didn’t have anything to do with alcohol but spoke of policemen having charged a young, married couple with obscenity for kissing each other under a metro pillar in Dwarka, Delhi. The couple said that they weren’t kissing each other – they were taking pictures of themselves with a cell phone – and that the policemen (and their lawyer) were trying to extort money from them. Ultimately, they approached the Delhi High Court to have the FIR filed against them quashed. Among other things, they said that while they were being interrogated, the husband’s ATM card was used to unburden him of 20,000 INR.

The High Court while saying that the FIR was difficult to believe since there were no passers-by or witnesses whose statements were attached to it. Indian law does not define obscenity: it is left entirely to the judiciary to interpret what is and is not obscene.  The couple had been accused of having violated sections 294 and 34 of the Indian Penal Code. Under section 294, whoever, to the annoyance of others does any obscene act in any public place, or sings, recites or utters any obscene song, ballad or words, in or near any public place is to be punished with either simple or rigorous imprisonment for a term which may extend to three months, or with fine, or with both. Section 34, however, deals with acts done by several persons in furtherance of a common intention. Under the Section, when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

One problem with accusing the couple with obscenity was the lack of witnesses: the law requires the obscene act to annoy others. If it’s an act which no one has seen, it does not fall within the parameters of the Section 294 of Indian Penal Code.

The Court also said that even if the couple were in fact kissing, there could be nothing wrong in their doing so, and it expressed surprise that the police chose to ignore the fact that the couple were married. Justice Muralidhar said: “The FIR doesn’t make a case for offence under Section 294 (obscenity) read with 34 IPC. It is inconceivable how, even if one were to take what is stated in the FIR to be true, an expression of love by a young married couple would attract the offence of obscenity and trigger the coercive process of law.”

While it’s certainly something that the High Court did in fact step in to protect the couple, what was striking was the emphasis on the couple being married. Does that mean that if the couple was not married, their having done exactly the same thing would have been considered obscene?

Reference: Times of India, February 3, 2009