The ‘Law Of The Land’ On Kissing In Public

Respected Members,

At the centre of the incidents of November 2, 2014, is the alleged act by some students to display demonstratively mutual affection in the form of kissing. Without going into the factual correctness of the charge, let me share with you what I have learnt from legal scholars and activists. I do so in the hope that this will help the Committee “ascertain” “the position of the law of the land” regarding kissing in public.

1. Indian judiciary at the higher levels has not universally treated kissing in public as illegal. In appropriate context, spelt out variously by the relevant judgments, it has been seen as an expression of love, expression of love and compassion, and its artistic representation as defensible. Absent in all theses cases is the tendency to presume that every kiss is an act of sexual expression and that indulging in this act in public is always obscene. (A & B vs State Thr. N.C.T. of Delhi 2009; Friday vs K.J. Sebastian 2001).

2. The Supreme Court has observed that the Indian Penal Code “does not define the word obscene and this delicate task has to be performed by courts….” If the Apex Court considers it a delicate task, how much more challenging it would be for university teachers and police officers to say if an act is obscene! (Udeshi vs State of Maharashtra 1965).

3. I understand that as teachers we are all concerned about values. But the lament about increasing licentiousness and general moral deterioration is itself not new. We come across it in all ages and periods and, historians will tell us, such claims are not to be taken as factual reports. But assuming that this alarm has some objective basis, should we be using force to make ‘moral’ men and women out of students who are adults themselves? What the Supreme Court said in the Khushboo case is sobering. It said: “Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy”. (Khushboo vs Kanniamal 2010).

4. Part of the difficulty arises from the fact that notions of public decency and morality in our society have been rapidly changing. Several Supreme Court judgments have repeatedly pointed this out. Way back in 1969, in the Chandrakant Kalyandas Kakodkar case, the Court observed that the “standards of contemporary society in India are…fast changing”. The observation would be even more apposite if it were made today. (See also Udeshi vs State of Maharashtra 1965).

5. The Central Administrative Tribunal (Principal Bench, New Delhi) has made a similar point. Commenting on the invocation of the Section 294 of IPC, the Hon. Chairman maintained: “ They [the lower courts] should have been sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294 of IPC on today’s society and its standards, and its changing view of morality”. (Order of the Central Admin Tribunal, New Delhi 1 Feb 2012).

6. To the judicial acknowledgement of the temporal variations in notions of obscenity, we must add that in an immnesely diverse country like India, there are cultural variations as well. Holding the most vocal or the most dominant notions of decency and obscenity to be the standard Indian notion of decency will amount to criminalising currently weaker cultures. When change is underway, preferences and tendencies clash, and the challenge we face as academics and administrators is to invent new responses to these conflicts.

7. It is true that ‘community standards’ are often taken by the judiciary as the measure to decide if an act is indecent. But even when the Supreme Court has taken the “contemporary mores” into account to determine obscenity, it has clarified that it is not “the standard of a group of susceptible or sensitive persons” that can be held as the standard of the community. (Aveek Sarkar vs State of West Bengal 2014).

8. The Apex Court has also come to base its verdicts in obscenity cases on a careful consideration of the context. In a recent judgment involving the publication of an almost nude photograph of a German tennis player and his black girl friend, the Court observed that “we should…appreciate the photograph and the article in the light of the message it wants to convey….” The “message that the photograph wants to convey is that the colour of skin matters little and love champions over colour”. (Aveek Sarkar vs State of West Bengal 2014).

9. If the message sought to be conveyed is indeed crucial in determining the obscenity of a picture published in a magazine, then an act of kissing in public too will have to be seen in its entirety before being penalised.

   An act deemed by law to be an offence, when performed as protest, demands a response from us different from that of criminal investigation. An act of protest tries to draw our attention to an injustice or it challenges what the protesters think are illegitimate prohibitions. To use the language of criminal law to describe it would be a serious misconstrual.

11. In this context, the following observations by the Supreme Court are of utmost significance: “The test of obscenity must square with the freedom of speech and expression guaranteed under the Constitution. This invites the Court to reach a decision on a constitutional issue of a most far reaching character and it must beware that it must not lean too far away from the guaranteed freedom.” (Emphasis added.) (Ranjit Udeshi vs State of Maharashtra 1965).

12. It is in the very nature of protest that it annoys someone. Not involuntarily, as the dictionary meaning of “causing annoyance” indicates, but through a staged confrontation. Section 294 of the IPC, often invoked by the police to deal with cases of public display of affection, says that any obscene act, in any public place “done to the annoyance of others” is an offence. But acts of protest must be exempt from the “annoyance” criterion. Otherwise several forms of protest, so vital for democratization, will be automatically rendered illegal.

13. I have cited the Apex Court’s views and remarks on the very difficult question of what constitutes obscenity. In the light of all these judicial pronouncements, more important than the bare text of the Section 294 of the IPC, I suggest that we refrain from using the lens of a law of colonial vintage to judge the acts of today’s students. We, as academics, can do better than that. Let us remind ourselves the “need to tolerate unpopular views in the socio-cultural space”, as the Supreme Court said in the Khushboo case. It went on to say that “the free flow of ideas is essential to sustain the collective life of the citizenry”. The Court stressed the need “to promote culture of open dialogue” as far as “societal attitudes” are concerned. (Khushboo vs Kanniamal 2010).

14. Dialogue and debate is what we need on university campuses, not prosecution of views and practices that somehow scandalise us, despite being harmless.

Sincerely,

Sanjay Palshikar, 
Department of Political Science, 
University of Hyderabad

Lawrence Liang, Gautam Bhatia, Jawahar Raja and other friends helped greatly with their inputs. The responsibility for the views and errors, if any, is mine.   

This was first published on Kafila