What annoys me most about this case, however, is that even if what those couples were up to does amount to obscenity prohibited by s 294(a), there is absolutely no legal power with the police to punish the couples in this case. The police is a preventative, investigative and perhaps prosecuting agency – the task of punishment is normally that of the judiciary alone. Sometimes laws give police the power to fine offenders for minor offences. As far as I am aware, there is no law giving police the power to punish anyone for violation of section 294(a). This corporal punishment was inflicted without fair trial and without the authority of any law.
The Delhi High Court held in Manushi Sangathan v Govt of Delhi that ‘there is no power in the MCD, much less the Delhi Police, to seize and either sell in auction or destroy a rickshaw even where it is found to be driven without a licence or by a person not having a proper licence.’ [para 63] That case turned on the right to property guaranteed by the constitution, which the Court rightly held can only be taken away by law. (see our previous post on that case here). Right to liberty, which is involved in the case of Operation Majnu, is a fundamental right and therefore on a higher status than the right to property. It cannot be infringed without express provision of the law, which must be just, fair and reasonable. The cops in this case have clearly violated the law, as well as the constitution. They must be held to account.