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.

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  • VV

    You point out correctly the problem of the police trying to clamp down on public displays of affection. However, I don’t see what s.294(a) has to do with this.
    There is a difference between an act being legal and legitimate. It is possible that in some cases they may be the same, but it is not so always.
    An act being legal doesn’t always make it legitimate. Likewise, an act maybe perfectly legitimate without the law having to say anything on it.
    The action of the police can only be legal or illegal. If they act in accordance with the law, they are acting legally, otherwise they are acting illegally.
    I agree with you when you say that the police are probably acting illegally when booking married couples under s.294(a) when no one has complained of being annoyed.
    However, that does not mean that no one should be able to complain of being annoyed by obscene behaviour in the public. A basic example could be a nude streaker disrupting a game of cricket in the stadium to garner publicity, much to the annoyance of audience and players alike.
    In the hands of the unscrupulous, the best of laws can be abused, but that doesn’t amount to a “case” being made out to repeal such laws.

  • I agree with alok, but not on legitimacy-legality distinction with reference to this offence.

    Possible abuse of law, to my understanding, by itself is not capable of forming a cogent ground for repeal of law, or a section thereof. It does however build a case for adding protection within the law to ensure that it is not abused.

    It is not only about PDA as it is difficult to exhaustively lay down what would and would not amount to “obscene behaviour”.

    I am hoping that at the end of litigation in Delhi High Court case, there will be some deterring element for abuse of law perpetrated by “Ram Sena” in khaki uniform.

  • Here is search for all supremecourt judgments citing Section 294

    The second judgment in the list is
    Japani Sahoo vs Chandra Sekhar Mohanty on 27 July, 2007

    The case seems to be the use of abusive language by a police inspector. Here is an excerpt:

    ” At about 9.30 p.m. on February
    2, 1996, the complainant went to Chandrasekharpur Police Station where the accused was waiting for him anxiously to extract money. As soon as the complainant entered the Police Station, the accused abused him by using filthy language. The complainant was shocked. The accused pushed him as a result of which he fell down and sustained bodily pain. The accused also
    threatened the complainant that if the latter would not pay an amount of Rs.5,000/- by next morning, the
    former would book him in serious cases like ‘NDPS’ and dacoity.”

    Unfortunately only six high court judgments have categorically cited Section 294(a)

  • I agree with VV and disagree with Alok on this. A law that is so broad and can put you for 3 months in jail is inviting for abuse. Police love them to extract money from clueless people. It can be replaced by more specific condition like “baring sexual organs or performing sex in public space”.

    Indecent language should be covered by freedom of speech. There can be rule against people holding public office to not use indecent language while in office (not a criminal offence though).

  • well, the case of repeal rests on the fact that this is a criminal provision, and that flippant ‘offences’ to one’s moral sentiments should not be criminalised. should the bar of criminality really be so low? should we lock up a couple who kisses in public? we really need to debate the entire basis of our criminal law system, including justification for each crime. after a century and a half, it is about time. surely, for anything to be criminal, special justification should be demanded. we work on the opposite presumption of criminalise everything, unless there are special reasons not to.
    on this case particularly, will someone please explain to me why the marital status of this couple is relevant?

  • i m not sure one will go so far as to repeal. Modify, yes. Repeal, perhaps not.

    An act like this is required, but there is a difference between PDA and obscene act in public. If a man exposes himself to a woman in a public area (a bus, and that has happened multiple times), i would like a law like this.

    The hinge lies, imho, in the “offensive” and not offensive nature of the act. And thats a difficult thing to define..

  • The problem is not with what the law was ideally supposed to be (probably to prevent obscene behavior) but

    A. with how it has been framed. The provision is
    “Whoever, to the annoyance of others.
    (a) does any obscene act in any public place, or
    (b) sings, recites or utters any obscene songs, ballad or words, in or near any public place,
    shall be punished with imprisonment of either description of a term which may extend to three months, or
    with fine, or with both.”
    The word ‘annoyance’ is very broad and subjective. Also, singing obscene songs etc., especially considering today’s music, is probably a problem anywhere.

    B. With the misuse which HAS already happened. The case for its repeal comes into the picture if it is shown that it has been more misused and abused than used to do what it was actually meant to. If considering a couple as married decreases the annoyance caused to others, celebrities kissing each other is enough to amount to obscenity, where does it stop? Considering especially that it is a criminal provision, according to me, it is too broadly worded and should be amended at the very least, if not repealed.

  • It is quite interesting that when people fight in public then most of the people gather around and watch it.However, this ‘privilege’ is only enjoyed by males, i wonder if violence in public is not a criminal offense then how can display of love be interpreted as ‘obscene’?
    True, the emphasis on “married” couple further reinstate the victorian stereotypical attitude.

    i think all those who argue for repeal of the section are in essence trying to have a case for making the standards of ‘obscene’ behavior more human.Thus, what is required is categorical rejection of parochial standards rather than repeal of the section itself.

  • i agree with mr alok ..and i also appreciate his clarity on the issue.but one has to comment by keeping an eye on modernised has to accept that we are no more a part of the orthodoxs society..kissing or hugging cannot be counted under the act 294 .these things may also happen between the blood relatives.there is nothing wrong in hugging their sisters or cousins.police has no right on pointing does nt annoy any one.kissing is also a way of expressing love or effection.but any act which cross the line of limit must not encouraged.kissing is no more matter in our metros