Sunday, February 08, 2009

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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