Section 120A

This article is written by Srushti Khule, a student of NALSAR University of Law, Hyderabad. Apart from discussing an offence under Section 294 of the Indian Penal Code, 1860, the article extensively discusses punishment and essential case laws.

It has been published by Rachit Garg.

Introduction 

Do you know that recently the members of a parliamentary panel have told executives of several OTT platforms, such as Netflix, Disney+ Hotstar, Prime Video, etc., to abstain from showing obscene content and using abusive language in the content shown by these OTT platforms? Don’t you wonder why it asked them to respect the country’s cultural sensitivities? Why is it so essential to preserve morality and decency in society? What will happen if freedom of speech and expression is allowed to use without reasonable limits?        

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We live in an age where society is part of our everyday lives. The aspect of decency and morality in a society is precious and vital for maintaining well-being. If not preserved, society may fall into a ditch of chaos and vulgarity. A single act of immorality, indecency, or lewd behaviour can affect the conscience of society at large. It may negatively impact vulnerable individuals, such as children, or those easily influenced by explicit content. It may hamper the growth of society in a decent and civilised direction. It can destroy social norms and standards. Thus, the force of the law is required to prevent and punish such acts or behaviours. But one should also be mindful that the right to freedom of speech and expression should not be compromised to prevent obscenity.

Section 294 of the Indian Penal Code, 1860, is one such provision that punishes the act of obscenity. The maximum punishment under the provision is three months, but is it enough for this kind of offence remains a question. This article will examine the essentials, nature, and punishment of offence under section 294 IPC. It will also give the reader a comprehensive understanding of the topic of obscenity through various judicial pronouncements and tests used for determining it.   

Essentials of crime under Section 294 IPC

It falls under the specific category of a public nuisance, coming under Chapter XIV (Offences affecting public health, safety, convenience, decency, and morals) of the Indian Penal Code, 1860. To constitute the offence under this provision following ingredients must be followed-

  1. A person shall do any obscene act in public, or 
  2. A person shall sing, recite or utter obscene songs, ballads, or words in or near any public public
  3. This act must cause annoyance to others. 

What is meant by ‘obscene’ is not defined under the IPC because it changes from time to time as society changes. In simple terms, it means offensive to the public sense of decency or morality, especially in the sexual sense. The Supreme Court of India and various high courts have given different inferences about the definition of obscenity. They have not been able to set a precedent because what may be obscene today may not be in the future. 

Illustrations

  • While standing in a crowded market, a person loudly sings a vulgar and sexually explicit song that contains offensive and obscene language. His actions cause discomfort and annoyance to the people present in the locality. If reported and proven, he can be charged under Section 294 for singing an obscene song publicly. 
  • During a religious procession, a group starts chanting and reciting obscene and offensive words, mocking religious figures, and using derogatory language. Their actions disturb the peace and hurt the religious sentiments of the people participating in the procession. They can be charged under Section 294 for uttering obscene words in or near a public place if caught and proven. 

Nature of the offence under Section 294 IPC 

The offence is cognizable, meaning police can arrest a person without a warrant or prior court permission. It is bailable and triable by any Magistrate as a summons case. According to Section 320 of the Code of Criminal Procedure, 1973, it is a non-compoundable offence, meaning the offence is of such a nature that a trial must be conducted, and no out-of-court settlement is possible between the victim and the accused.

Tests for obscenity 

Hicklin test 

It was given by Lord Cockburn in the case of Regina v. Hickin(1968). In this case, Benjamin Hicklin distributed pamphlets containing information about some unethical practices by the church and abuse done towards women during confession. He was convicted for publishing obscene material irrespective of his intention to do the same. Hicklin’s test was established that defined obscenity as anything that tends to deprave and corrupt the minds of people open to such immoral influences and into whose hands such material or publication may fall.

Miller test 

This is the primary legal test used in the United States for determining obscenity. It was developed in the US Supreme Court decision of Miller v California(1973). In this case, Marvin Miller mailed five unsolicited letters to the restaurant manager and his mother. Those letters contained pictures and drawings of men and women engaged in sexual activities. He was prosecuted for distributing obscene material, and three prongs test was established. 

  1. An average person applying community standards would find that work as a whole appeals to prurient interest. 
  2. The work describes or depicts sexual conduct patently offensively. 
  3. The works lack serious literary, artistic, political, or scientific value when taken as a whole.    

Community Standards test

This is the primary legal test applied in India for determining obscenity. According to this test, any art, or gesture, or content is obscene if it opposes contemporary community standards if the dominant theme is taken as a whole. 

Punishment of crime under Section 294 IPC

The provisions of punishment include the following- 

  • A term of imprisonment that may extend to 3 months; or 
  • Fine; or 
  • Imprisonment and fine, both; 

The amount of the fine is not mentioned. It depends upon the severity of the offence in each case. In some earlier cases, a punishment of 3 months was considered severe, but this view is obsolete now. Instead, the prevalent view is that more than three months of the maximum sentence is needed in the context of events happening nowadays. The judiciary has even advised the legislature to amend Section 294 IPC. 

The essential requirements constituting the act shall be fulfilled to punish the offender. An obscene act shall be done, or any song, ballad, or word shall be spoken. It shall be committed publicly and cause annoyance to the victim and others witnessing it. Some of the judicial pronouncements are mentioned below to understand the ingredients comprehensively.   

What does ‘obscene’ mean?  

The Madras High Court in the case of Zahir Hussain v State Reps(2021) had observed that the definition of obscenity is not given under Section 294, but as the offence is in continuation of the same subject matter, the definition of “obscenity” under Section 292(1) of the IPC can be applied in a prosecution under Section 294(b) of the IPC. Therefore, to punish, the alleged words must be lascivious, appeal to the prurient interest, or deprave and corrupt persons.

In Prabhakran V.V. v. State of Kerala (2022), the accused filed the petition to quash all the proceedings including Section 294(b) issued against him. The allegations were that the accused used abusive and obscene words towards the respondent. The Kerala High Court observed that unless words can arouse sexually impure thoughts to its hearer, the offence under Section 294 would not be attracted. In this case, the accused had not used such words to arouse sexually impure thoughts. Accordingly, it accepted the petition and quashed all further proceedings.

The Supreme Court in the case of N.S. Madhlagopal v. K Lalita (2022) held that abusive or defamatory words are not necessarily obscene and are not punishable under Section 294(b) of the IPC. It said it could not consider every humiliating word obscene. In this case, the accused is the landowner of the complainant. The incident occurred when work of laying PVC pipes was being carried out. He was alleged of using unparliamentary language towards the complainant when they enquired about ongoing work. The offence was not found under Section 294 IPC.

Acts shall be done in a public place or near a public place

In another case, the Bombay High Court has said that an offender cannot be penalised if the act is done privately. In the said case, a journalist complained about the annoyance caused to him by playing loud music from a nearby flat. Further, half-clothed dressed women were seen dancing from his window. The men present there were seen showering money on them. The Bombay High Court held that a private person owned the flat for personal use and thus was not a public place. It further said that a public place means a place where the public has free access and the right to enter. 

In the case of Dr. Ramchandran v. Sub-Inspector of Police (2022), the accused filed a petition in the Kerala High Court to quash proceedings against him initiated by the respondent. The accused is a paediatrician, and the respondent is the mother of the patient of the accused. The allegation was that the accused while attending the respondent’s child in his consultation room, showed obscene actions with his finger and uttered obscene words against the respondent. The Kerala High Court observed that the doctor’s consultation room could not be termed a public or near public place. Further, the words utter must arouse sexually impure thoughts in hearers’ minds. The case was not made alleging that the petitioner aroused sexually impure thoughts. Thus necessary ingredients of Section 294(b) were not fulfilled, and proceedings were accordingly quashed.

Act shall cause annoyance to others 

One of the important judgments in this respect is of the Bombay High Court in the decision of Narendra H. Khurana vs. Commissioner of Police (2004). In this case, a complaint was filed against the restaurant that a cabaret dance was going on, and girls exposing private parts of body were found in it when the raid was conducted. The Bombay High Court held that mere obscene acts or behaviours are insufficient, and there must be some proof of annoyance caused to the victim and person hearing it. The question of obscenity per se do not arise until and unless it is proved that person witnessing an obscene act at the given time was actually annoyed or not. 

Some judicial pronouncements in which the accused was convicted and punished  

Zafar Ahmed Khan vs. State (1962)  

In this case, the accused followed the auto of two stranger girls and stopped following when the auto of the girls stopped. He then addressed them with the words, “Ao meri jan merry rickshey per baith jao main tumko pahucha doonga main tumhara intizar kar rha hu,” This happened in the presence of the auto driver and many other people gathered around. The FIR was filed and he was convicted under Section 294 of IPC. The Sessions Judge, Lucknow gave him a rigorous imprisonment of three months. In an appeal, Allahabad High Court observed that the girls were young and belonged to a respectable family. They were strangers to the accused, and such words suggested an illicit sexual intention. It was considered that such words must have caused a moral shock to the victim and the person hearing them. Thus, the punishment given by Session Judge Lucknow was deemed appropriate and non-arbitrary. 

Sadan Prasad vs. State of Bihar (1969) 

In this case, the accused approached a girl of 12-13 years old while she was going to school. He uttered the words, “Rani Ban Than Kar Kahan Ja Rahi Ho”. It was further discovered that he teased and vexed her often by using vulgar and obscene language. He was punished under Section 294 of IPC and sentenced to one month of simple imprisonment. The Session Court in the case noted that the nature of teasing schoolgirls is becoming more common. The Patna High Court pointed out that courts cannot disregard such events.

Patel H.M. Malle Gowda vs. The State Of Mysore (1972)

In this case, the accused used abusive and vulgar words against a medical doctor in front of nearly a hundred people and dragged the doctor’s wife into the bargain. The Karnataka High Court observed that annoyance may not be proved by direct evidence and can be inferred from the facts and circumstances of the case. Here, the fact that the doctor and people were complaining was considered a sufficient indication of the annoyance caused. The contention that using such words is common in rural areas was rejected, keeping in view the social position of the doctor. He was convicted under Section 294 of the IPC and sentenced to pay a  Rs. 30/- fine.    

Some recent controversies on obscenity

Rehana Fatima a social activist controversy over her semi-nude body art

Rehana Fatima women’s rights activist posted a video on her social media platforms showing her two minor children painting her semi-nude upper body with the hashtag ‘Body Art and Politics.’ The havoc was caused in public, alleging her of obscene and vulgar acts. The Kerala Court recently discharged her of all charges and set aside lower court order convicting her. It reiterated that a picture of a nude or semi-nude woman could not be called obscene unless it tends to arouse feeling or reveal an overt sexual desire. It further held that nudity should not be tied to sex. The depiction of the nude body of a woman cannot be per se obscene, and the same should be determined in context. The context here was that accused wanted to break the stigma of society related to women’s bodies. It was a political expression of the accused and not any sexual act. 

The Ekta Kapoor controversy over ‘XXX uncensored’ TV show

An FIR was filed against Ekta Kapoor in Madhya Pradesh that episode of the series ‘XXX, uncensored’ shown on the ALT Balaji platform, was obscene and caused annoyance to the complainant. She filed a petition in the Madhya Pradesh High Court to quash FIR and other proceedings. The Madhya Pradesh High Court in Ekta Kapoor v State of Madhya Pradesh, 2020 observed that if the material is obscene, it does not matter if the watcher is of adult age. If the material is against public decency and morality, the freedom is curtailed under Article 19(2). The contention that the series is only available to subscribers and not in public space was rejected. It held that the series is shown on a platform accessible to the public and thus constitutes a public place. The petition was rejected by the Madhya Pradesh High Court on these grounds. After two months of this case, Supreme Court granted interim protection from arrest in the above FIR. 

In 2022, a second FIR was filed against her, and the Bagusarai court in Bihar issued an arrest warrant. She moved to the Patna High Court to quash the arrest warrant but, fearing that her case would not be heard in a reasonable time, moved Supreme Court. The Supreme Court remarked that something has to be done against such content. She is polluting the minds of the younger generation of our country. It questions what kind of choice is available to the people when content is available to all. Accordingly, it dismissed her petition and said next time, it would put a cost if such a petition were filed again.

Recently, the Patna High Court stayed proceedings and granted relief against the arrest warrant issued by the Bagusarai court.        

Conclusion

The terms like obscene or public place are not defined under IPC or other statutes of our country. Thus, it is crucial to refer to various judicial pronouncements to comprehensively understand the topic. While discussing the punishment for Section 294 IPC, one may wonder and question why the courts have even penalised offenders with a meager amount of Rs 30 in some cases. Nowadays, the majority of people can pay such a meager amount, but the aim is not to make offenders responsible for the required amount. The intention is to make them guilty of acts of obscenity so that they do not repeat those mistakes again. They are punished because maintaining decency and morality in society is of utmost importance. At last, it is also important to strike a balance between the right to freedom of speech and expression and the decency and morality of the society. Obscenity is a very serious crime that hampers any civilised society thus punishing the offender becomes very important.           

Frequently Asked Questions (FAQs) 

What can be considered as a public place under Section 294 IPC?

A public place, as defined under Section 294 IPC, refers to any place to which public has access.It can be streets, parks, markets, public transportation and other similar areas.  

Where is obscenity defined under the Indian penal Code? 

Obscenity is not defined under the IPC or any other law of the country. Instead, it has varying definitions according to the different cultural, religious, and ethnic values of society. It is an act or behaviour, especially in a sexual sense, that goes against public morality and decency. 

What is the difference between obscenity and vulgarity?

These terms are not explicitly defined under Indian law, resulting in varying judicial interpretations. In standard terms, vulgarity arises from feelings of disgust and detestation but does not necessarily corrupt minds. On the other hand, obscenity is mainly in the sexual sense and corrupts the minds of people likely to be influenced by it. 

Is Section 294 IPC a bailable offence?

Yes, it is a bailable offence. 

Which type of offence is Section 294, compoundable or non-compoundable? 

It is a non-compoundable offence, which means a trial must be conducted, and no compromise can be entered between the victim and the accused. 

Can Section 294 IPC be invoked for online/offline obscenity?

Section 294 of the IPC primarily pertains to obscenity in public places. However, using obscene words or acts online or offline can fall under other areas of the law, such as Section 67 of the Information Technology Act, 2000, which deals with electronic publication or transmission of obscene material.

References    

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