This article is written by Kabir Jaiswal and Syed Owais Khadri. This article provides insights into the norms or laws relating to public display of affection (PDA) in India. It explains the meaning and types of action that may fall within its ambit. It looks into the reasons which make PDA a highly controversial topic while discussing it with respect to the concept of obscenity. This article aims to determine whether PDA is an offence in India.

Table of Contents

Introduction

The Delhi metro has been the topic of discussion in several instances in recent times due to the virality of videos in which people are seen indulging in acts amounting to the public display of affection (hereinafter referred to as PDA). Several such instances of PDA have been heard of. In fact, a few years ago, a couple was beaten up in the Kolkata metro for hugging. It is quite tragic that PDA sometimes becomes a bigger topic of concern and outrage than the more pressing issues like women’s safety, etc.

Public display of affection refers to any physical act reflecting love or affection by one person towards another. It extends from simple hugging to kissing, but usually not beyond that. However, since the definition of PDA is subjective, the controversy regarding it is never-ending, as the extent or method of showing affection differs from person to person.

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As long as the behaviour is simple and not obscene, it is not illegal and is unlikely to attract the attention of the police and lead to your arrest. However, if you were to engage in bolder behaviour, such as sexual intercourse in a public place, such as the local beach or park, your chances of being arrested are greatly increased. This article discusses several aspects relating to PDA, including its meaning, the concerned social norms, and the difference between being intimate and being obscene. 

Meaning of PDA

Public display of affection or PDA is the commission of any act by an individual intending to or showcasing a feeling of love, affection or warmth towards another individual in an open space or in public. It basically refers to the physical actions expressing or showcasing affection or warmth committed publicly.

Forms of PDA that may be allowed

There is no exhaustive or inclusive list of actions that may qualify as PDA. However, it is also important to draw a certain boundary to demarcate the actions that would fall within the meaning of PDA, considering the cultural and societal norms in India.

The appropriate method based on which actions may be restricted to qualify as PDA, might be to stick to the term’s simple meaning. The appropriate limit might include simple actions that showcase affection, love, or warmth. Some of the actions or forms of PDA that may be allowed are as follows-

  • Holding hands in public.
  • Putting your arms around the other person.
  • A kiss on the forehead, cheek, head or hand.
  • Hugging in public.
  • Putting your arm around the waist.
  • Verbal expressions of love.

Actions that may not be allowed as PDA

Some actions might be well beyond the simple meaning of PDA and may turn obscene. Certain intimate acts, which can qualify as being obscene, are generally inappropriate in public spaces and may not be allowed.

Some of the actions or forms of PDA that may not be allowed are as follows-

  • Compassionately kissing your partner in a public place. 
  • Touching your partner’s genitals in a public place. 
  • Sexual intercourse in a public place.

PDA – a controversial issue

Conservatism in Indian society

It is an undisputed fact that Indian society is largely conservative. Although Indian society is extremely diverse, one common factor that is noticed everywhere and in every part of the society is conservatism. This conservativeness is relaxed to a certain extent in some areas, particularly metropolitan cities. However, the mentality of the majority of Indians, still lacks the simple eagerness to accept that the world is changing and that people are changing too. Holding hands, hugging, wrapping arms around the shoulder, etc., turn many heads. Such minor affectionate gestures are also often considered a big issue in India.

Idea of social morality

As an Indian, it is necessary to understand that cultural and social values are of great importance. Complaints of immoral activities and general moral deterioration have been noticed through all periods of time. However, this should not reach the extent of using force to impose one’s opinion and standard of morality on others.

PDA is considered to be a violation of social morals. We live in a country where people are unfazed by urination in public, but a simple hug or act of affection between two individuals of the opposite gender is considered immoral and indecent. People remain quiet when a crime or any unlawful act is committed, but show efforts to stop simple acts of PDA, claiming it to be immoral and harmful to the culture and morality of society. People who do not raise their voices against the commonly witnessed molestation of women in public transport, aim to bring about a change in society by opposing hugging and other simple gestures amounting to PDA. Evidently, there is no clear standard of social morality.

The Supreme Court‘s observations in the case of Khushboo vs. Kanniammal (2010) were- “The concepts of social morality are inherently subjective and criminal law cannot be used to interfere unduly with the domain of personal autonomy.” Public display of affection is therefore still highly debatable, because of the concept of social morality, which not have a strict definition of standards.

Doctrine of public decency

Part of the problem lies in the rapid change in concepts of public decency and morality in our society. Several Supreme Court judgements have repeatedly highlighted this. The Hon’ble Supreme Court in Chandrakant‘s Kalyandas Kakodkar vs. State of Maharashtra (1969) noted that “the standards of contemporary society in India… change quickly”.

The central administrative tribunal made a similar point. It pointed out that the lower courts must be sensitive to changing views and concepts of decency and morality while dealing with cases under Section 294 (obscene acts and songs) of the Indian Penal Code, 1860 (IPC) and their impact on society.

PDA as an offence

Although PDA itself is nowhere expressly defined or criminalised in any of the penal legislations, it is often treated as a criminal offence within the scope of the offence of obscenity, due to the lack of clarity on the offence or the vague nature of the provision under Section 294 of the Indian Penal Code, 1860.

Section 294, under clause (a), penalises the public commission of any obscene act. It provides that any person who commits any obscene act in a public place to the annoyance of others is punishable with imprisonment for a term of three months, a fine, or both.

The main ambiguity of the provision is the absence of a definition of ‘obscene act’. The provision does not define the term “obscene”, which enables the inclusion of every act that annoys an individual, within the scope of the provision.

As a result, PDA, irrespective of the kind and nature of the act that is committed, can be a criminal offence under the provision mentioned above. It is usually not differentiated whether the act committed was a simple gesture such as holding hands and hugging or something beyond that.

Therefore, PDA is punished under Section 294 of the IPC on the ground that the persons indulging in PDA cause annoyance to others by committing an obscene act in a public place. 

(According to the new legislation which has replaced the existing laws, Section 294 of the Indian Penal Code, 1860, corresponds to Section 296 of the Bharatiya Nyay Sanhita, 2023)

Offence against morality

While the criminality of PDA is debatable, depending upon the nature of the act committed, the commission of any form of PDA, irrespective of the nature of the act, is usually considered an offence against morality. Although one may not be imposed with penal provisions, particularly under Section 294 of the IPC/Section 296 of BNS, for indulging in a simple act of PDA, such as hugging, there are extremely high chances of moral policing. In fact, in the majority of cases, penal provisions are invoked against individuals involved in PDA, due to the pressure from society on the police. 

In many cases, people may go to the extent of physically assaulting individuals in the name of moral policing, even if the act committed is extremely simple, such as hugging. As a matter of fact, certain moral policing groups go out searching for couples in parks and other public places on Valentine’s Day and start abusing and harassing the couples, even if they are merely sitting with each other and not committing any act of PDA. Unfortunately, people seem to be more concerned about a simple act of PDA than actual crimes such as molestation.

PDA – intimacy and obscenity

PDA includes various acts that may qualify as intimate and sometimes even as obscene. It also includes acts that may neither fall under intimacy nor obscenity. There is a very slight difference or a thin line between the two terms- intimacy and obscenity. Certain acts of intimacy may qualify as obscene acts. Hence, it is extremely necessary to have clarity regarding the meaning of these terms, since the meaning and nature are the factors that determine if a particular act of PDA can be considered a criminal offence or not.

Intimacy

Intimacy refers to a feeling of closeness or warmth between two individuals. It extends from holding hands to engaging in sexual activity.

Merriam-Webster defines intimacy as  “a state of being intimate or something of a personal or private nature.”

Cambridge Dictionary defines intimacy as “a situation in which you have a close friendship or sexual relationship with someone”

Collins Dictionary defines intimacy as “Intimacy between two people is a very close personal relationship between them.” Furthermore, it states that the term may also be used to refer to a sexual relationship.

The term intimacy or intimate therefore implies two meanings or rather one meaning with a difference in nature or extent.

  • The first one refers to a feeling of mere closeness or warmth without any sort of sexual activity. It may include activities such as holding hands, staring at each other with a feeling of love, hugging, a simple kiss, etc. (Kissing is also controversial. In this context, it refers to an act that is within a certain limit and does not appear to be sexual in nature.)
  • The second one, as mentioned in the definitions, refers to sexual acts or relationships. This type of intimacy may fall under the category of obscene acts.

Therefore, it is necessary to understand that while the commission of the first category of intimate acts may be permissible in public spaces, indulging in the second category of intimate acts might not be appropriate.

Obscenity 

Obscenity refers to the nature of offensive acts or acts that are against morality or virtues. It generally includes acts that fall under the second category of intimacy, as discussed above. It usually refers to the ones that involve sexual activity.

Merriam-Webster defines obscenity as “the quality or state of being obscene, that is, disgusting to the senses or abhorrent to morality or virtue.”

Cambridge Dictionary defines obscenity as “the fact that something is obscene, that is, offensive, rude, or shocking, usually because of being too obviously related to sex or showing sex.”

Collins Dictionary defines obscenity as “behaviour, art, or language that is sexual and offends or shocks people.”

Acts involving any kind of sexual relationship or acts that are sexual in nature are generally referred to as obscene acts. Accordingly, all acts of PDA cannot be said to be obscene and must not be treated as such without proper determination of their nature. 

Therefore, it is not appropriate to regard every act of PDA as obscene, nor is it appropriate to consider such acts punishable under the provision of obscenity. It is necessary to first determine if any committed act, especially those as simple as hugging or kissing, as mentioned under the first category of intimacy, is obscene. 

Determination of obscenity

Obscenity is a subjective term, the meaning and interpretation of which differ from person to person. What might seem obscene to one individual might not be obscene to another individual. Some people might consider even a simple kiss an obscene act, while others may consider it a mere act or gesture of love. Hence, the meaning of the term is unclear and indefinite. Moreover, the understanding or interpretation of terms has a strong tendency to change with evolving times.

This intricacy in understanding the meaning or definition of obscenity is further complicated by the ambiguous nature of the provisions dealing with obscenity. The lack of a proper definition or fixed standards for the determination of obscenity, at least for legal purposes, has made the issue of obscenity complex and unclear. 

Section 292 (sale, etc., of obscene books, etc.) and  Section 294 of the Indian Penal Code, 1860 (corresponding to Section 294 and Section 296 of the Bharatiya Nyay Sanhita, 2023) which penalise the offence of obscenity, merely mention the term “obscene”, but do not define it. This lack of a set standard or definition of the term complicates the understanding of what is obscene and what is not.

Therefore, to ease or simplify the process of determining obscenity for legal or penal purposes, certain tests have been adopted in various judicial decisions by courts across the world. Some of the significant tests include the Hicklin Test, the Roth Test, the Likely Audience Test, the Community Standards test, etc. 

Hicklin Test (United Kingdom)

The Hicklin test is the first test adopted in this regard, for the determination of the obscenity or obscene nature of any act. The Hicklin test refers to the guidelines set forth by the judiciary while dealing with an issue of obscenity in the case of R vs. Hicklin (1868) in England.

The said case involved the issue of statutory interpretation of the term obscene provided in the Obscene Publications Act, 1857. In this case, an individual was charged with the offence of obscenity for selling a publication called ‘The Confessional Unmasked’ that was alleged to have obscene material. 

The Queen’s Bench of England delivered a landmark ruling in this case by laying down a test for determining if any material was obscene in nature. The Court held any material that has a tendency to morally deprave or corrupt the minds of the individuals who may be exposed to such material or in whose hands such material may come to be obscene.

The Hicklin test propounded by the Court consisted of six essential elements, which are as follows.

  • Tendency to corrupt minds morally
  • Tendency to be decided from the perspective of a reasonable person. (Reasonable persons include young children and older individuals as well, which indirectly determines the tendency of the perspective of any individual/person.)
  • The intent or motive of the author or publisher is irrelevant.
  • The nature of the work as a whole is irrelevant.
  • Irrelevance of other contemporary works.
  • Accessibility of the material.

This test was widely criticised and rejected due to the consideration of every individual in society, irrespective of age, any other factors or even the other contemporary works that would have reflected the views of the society. The test imposed a major restraint on freedom of speech since every material would corrupt one or another individual, especially children who lack the ability to judge and differentiate between such material.

Roth Test (United States)

The Roth Test was propounded by the Supreme Court of the United States in the case of Roth vs. United States of America (1957). The United States Supreme Court was dealing with a challenge to the restrictions on obscenity and the sale of obscene materials imposed by the State of California on the grounds that the restrictions infringed upon the freedom of speech guaranteed by the First Amendment of the American Constitution.

The Court in this case held that any work would be regarded as obscene, if the main concept of such work, when taken as a whole, appeals to the lustful interest of an average person and the consideration or examination of the work must be done by applying contemporary community standards.

Therefore, the four essential elements of the Roth test can be noted as follows.

  • Determined from the perspective of an average person.
  • The main theme of the work must be taken as a whole.
  • Appeals to the lustful interest of an average person.
  • Must be examined based on the application of contemporary community standards.

Millers Test (United States)

The Miller Test was a modified and upgraded form of the Roth Test. It is also known as the Contemporary Community Standards Test. This test was propounded by the Supreme Court of the United States of America in the case of Marvin Miller vs. State of California (1973). 

The Court in this case suggested a threefold test to determine if any work or material was obscene or not. The said test consisted of the following elements.

  • If the work, when taken as a whole, by applying community standards, appeals to the lustful interest of an average person.
  • If the work depicts any form of sexual conduct defined by the applicable state law, in an offensive way
  • If the work lacks any artistic, scientific or literary value. 

The addition made in this case/test was the exception of literary, artistic or scientific works, which was a significant move towards the protection of freedom of speech.

Likely Audience Test (India)

This test is also known as the probable reader’s test. This test was propounded by the Supreme Court of India in two of its landmark decisions relating to obscenity. 

The Court in the case of Samaresh Bose vs. Amal Mitra (1985) diverted its stance from the adoption of the Hicklin Test, which determined obscenity from a reasonable person’s perspective (irrespective of whom the work was made for), to only the audience the work was intended for. This test restricted the size of the audience that was taken into consideration while determining if any work or material was obscene. The Court was of the view that a judge dealing with a case relating to obscenity, must try to view the work from an author’s perspective to understand what the author intends to convey and to whom, as well as if it has any artistic or literary value. Similarly, the judge must also try to understand the work from the perspective of readers of all age groups, who are expected to read it. Further, the Court also stated that there was a clear distinction between obscenity and vulgarity and both need not necessarily be confused.

In Chandrakant Kalyandas Kakodar vs. State of Maharashtra (1969) as well, the Supreme Court observed that the test of obscenity must be examined from the perspective of the intended audience and not any audience in the hands of whom such work might fall.

Landmark case laws on “obscenity”

Ranjit D. Udeshi vs. State of Maharashtra (1964)

The case of Ranjit D. Udeshi vs. State of Maharashtra (1964) is one of the earliest cases relating to obscenity in India. The Hon’ble Supreme Court in this case, was dealing with a challenge to the prosecution of the accused, under the offence of sale of obscene books or material as per Section 292 of the Indian Penal Code, 1860 for possessing and selling the novel ‘Lady Chatterley’s Lover’. The book was considered to contain obscene material or content.

The Court decided this case by applying a modified version of the Hicklin test. Justice Hidayatullah gave three main modifications to the Hicklin test, including the addition of a defence to obscenity. The three modifications to the Hicklin test were as follows.

  • The work must be examined as a whole. The obscene part of the work must be compared with the non-obscene part of the work. It should be determined whether the non-obscene share of the work has a greater influence to overshadow the obscene part or whether the obscene part is so little and insignificant that it would be ignored.
  • The mere presence of nudity or sex in art or literature cannot be considered obscenity in the absence of something more to it.
  • Any work, material or publication can be exempted from the scope of obscenity if such work or publication was for the public good.

The comments from the Supreme Court in this regard are of utmost importance. The Court had observed that the obscenity test must be examined by considering the freedom of expression and speech guaranteed by the Constitution. It also observed that the Court must decide on this issue while carefully ensuring that there is no great deviation from the guaranteed freedom, as it involves a constitutional issue of the most far-reaching nature.

Aveek Sarkar vs. State of West Bengal (2014)

The case of Aveek Sarkar vs. State of West Bengal (2014) is one of the most recent and significant cases relating to obscenity in India. The Court in this case rejected the Hicklin Test and adopted the Community Standard Test for the determination of obscenity. 

In this case, the Court was dealing with a challenge to a complaint filed against a newspaper and magazine under Section 292 of the IPC, for printing and publishing a semi-nude picture of Boris Becker and his fiancee. 

The Hon’ble Supreme Court, by adopting the Community Standard Test, ruled that the picture did not amount to obscenity/obscene material, as the intention of the picture was to portray a message of racial equality and non-discrimination on the basis of race. 

The Court observed that the picture was not intended to and did not excite any kind of sexual passion. It did not corrupt the minds of individuals in whose hands it might have fallen. It observed that contemporary standards and ways of life must be taken into consideration while deciding the issue of obscenity, not the standards of a sensitive person. A nude/semi-nude picture cannot be considered obscene if it lacks a tendency to arouse sexual desire.

Ajay Goswami vs. Union of India (2006)

The Court in this case of Ajay Goswami vs. Union of India (2006) was dealing with a writ petition filed seeking directions to the government to take measures to ensure the protection of children from sexually explicit material which has an exploitative tendency, irrespective of whether it is obscene and prohibited by law or not. The petitioner primarily sought the issuance of guidelines to newspapers and other similar publications concerning sexually exploitative material and a disclaimer on the first page of such newspaper or publication if it contains sexually exploitative material. It also sought the appointment of an expert committee to suggest measures in this regard.

The Court dismissed the petition on the grounds of failure to establish the rationale, necessity and requirement of curtailment of the freedom of speech and expression under Article 19 of the Constitution and also cited the existing measures and legal provisions in this regard.

The Court in this case observed that in cases involving works with questions of both art and obscenity, the decision must be taken after measuring or examining the artistic, literary or social merit of such works against obscenity. It was observed that a work must be seen from the perspective of a common man and not from the perspective of a hyper-sensitive individual and the bars must not be set according to such an individual’s perspective. It was observed that no work must be seen in isolation without any consideration of the entire context of the work. It was further observed that any publication or work must be examined as a whole. The Court observed that the fictitious imagination of any person, particularly minors, must not be bothered in a court of law.

Cases/ instances that led to a debate on PDA

Since the law does not give explicit definitions of “obscene acts,” police and courts are blatantly misused to harass couples. What is obscene and what is not must be clarified and defined urgently. India is a conservative country, and any new developments are bound to shake our systems.

It is a well-known fact that PDA in India is generally unacceptable. It is comprehensible that rural areas, where cultural and societal norms are rigid and are followed in the same manner, reject the simple practices of PDA. However, the case is not much better when it comes to urban cities. Even in metropolitan cities with a comparatively higher population and liberal norms, the practices of PDA are not easily acceptable. There are often cases or instances involving simple acts of PDA that turn into controversies. The following are some of the popular controversies or instances of PDA.

A and B vs. State through N.C.T of Delhi and Anr (2009)

The Hon’ble High Court of Delhi in A and B vs. State through N.C.T. of Delhi and Anr (2009) dealt with a petition filed for quashing of an FIR. The petition was filed by a couple against whom an FIR was registered under Section 294 of the Indian Penal Code, 1860. 

Facts of the case

Although there were two versions of facts that were presented before the Court, one by the petitioners and the other by the police, the main essence of the facts was as follows-

  • The petitioners were a couple who married recently and were present near the Dwarka Court Complex to complete the paperwork relating to the marriage registration process.
  • The petitioners were asked to wait by their lawyer, due to which they were waiting near the Delhi Metro pillar outside the court complex. While they were doing so, they decided to click pictures of each other, which were presented before the Court. In the meantime, they were approached by the police, who accused them of kissing in public, which was a punishable offence under Section 294 of the IPC. The police then arrested the couple, following which they paid a sum of around Rs. 20,000 to the police to be released from jail. The petitioners also alleged that no protocols were followed by the police while arresting the woman and that they were manhandled by the police.
  • However, in the other version of the facts, the police stated that the Sub-Inspector, along with a constable were present near the Dwarka Court Complex when they saw the couple sitting in an objectionable position and kissing each other in public near the metro pillar. The police stated that the said act of the petitioners was causing inconvenience to onlookers and passersby. The police then arrested the couple. Accordingly, they registered an FIR against the couple for the commission of an offence under Section 294, read with Section 34 (acts done by several persons in furtherance of common intention) of the IPC, for causing annoyance to others by committing an obscene act. 
  • The petitioners, in light of the events mentioned above, filed a petition before the Hon’ble High Court of Delhi for quashing of the FIR registered against them.

Issues raised

Whether a simple act of kissing, in the manner specified in the FIR, would attract the offence of obscenity under Section 294 of the Indian Penal Code, 1860?

Judgement

The Court in this case, noted that not even a single name of the passersby who were said to be annoyed and inconvenienced by the act of the petitioners, was mentioned in the FIR. The entire basis of an offence under Section 294 and the FIR, was causing annoyance to others by way of an obscene act. It was also noted that no statement from any such passersby was recorded. 

Accordingly, the Court ordered the Commissioner of Police to examine the matter. The Commissioner, on examination, found several irregularities in the proceedings of the police and also found the statements made by them to be false. He then ordered a disciplinary enquiry against the police officers and also stated that there was no objection to quashing the FIR. Therefore, the Hon’ble High Court of Delhi quashed the FIR against the petitioners.

The most important and relevant aspect of this case was an observation made by the Hon’ble Delhi High Court. It observed that even if the FIR and the contents of it were to be considered legitimate at their face value, it does not establish an offence under Section 294, read with Section 34 of the IPC. The Court observed that even if the contents of the FIR were true, it was incomprehensible to the Court as to how the expression of love by a young married couple in the manner provided in the FIR, would qualify as an offence of obscenity. 

Therefore, it may be inferred from this ruling that a simple act of kissing would not attract the offence of obscenity under Section 294 of the IPC.

Sebastian. T. Joseph and Others vs. Kerala State Commission for Protection of Child and Others. (2017)

The Hon’ble High Court of Kerala in Sebastian. T. Joseph and Others vs. Kerala State Commission for Protection of Child and Others. (2017) was dealing with a writ petition filed by the principal of the St. Thomas School in Thiruvananthapuram in Kerala. The petitioner sought to quash the order passed by the Kerala State Commission for the Protection of Child Rights. The order directed the school to allow a child (the second respondent in this case), who was suspended from the school, to attend classes.

Facts of the case

  • The second respondent was a minor child of Class XII, who was represented by his father. The child was admitted to the school in the academic year 2016-2017, to class XI.
  • A complaint was made by a teacher against the minor child, alleging that he hugged a girl in front of the teachers and other students during the school arts festival. 
  • The minor child defended the hug, stating that it was merely a congratulatory hug towards the girl student, who was also his friend. The child stated that there was no evil intention or any other reason for the hug. It was merely because he was impressed by the girl’s recital of a song at the arts festival and gave the hug out of humility and respect, as a compliment.
  • Despite defending the incident, the child and the girl student had been further stated to have apologised to the vice principal for the said incident with an assurance that such a thing would not be repeated.
  • However, both students were asked not to attend classes from the next day, and both of them were obliged to this instruction.
  • The students were later allowed to attend the classes after the Onam examinations. However, disciplinary actions were initiated against both students.
  • Meanwhile, the parents of both students were again summoned by the school authorities. This time, the school showed some pictures of both the students that were posted by the child on social media. These pictures were alleged to be of an obscene nature and they were said to be in a compromising position in those pictures.
  • As a result, the petitioner suspended both students from the school as a part of disciplinary action and it was later decided that they must be expelled from the school, stating that the incidents were affecting the morale of the other students as well as the reputation of the school.
  • In the meantime, the Kerala State Commission for the Protection of Child Rights (first respondent) issued an interim order directing the school to allow the students to attend school. 
  • The petitioner approached the Hon’ble High Court of Kerala through this writ petition, seeking to quash the interim order issued by the first respondent.

Issues raised

Whether the first respondent had the power to issue the impugned interim order directing the petitioners to allow the students to attend school.

Judgement

The Hon’ble High Court of Kerala ruled that the school was not at fault for taking disciplinary action against the child and there was no illegality or unfair conduct by the school, as the action was taken as a consequence of an unfortunate incident that had a tendency to affect the morale and discipline of the other students. However, the Court also observed that the school must also look to adopt a balanced approach in such instances, considering the future of students, especially when the child against whom action is taken is a student of class XII with board exams approaching in the near future.

The Court in this case observed that the first respondent was empowered to conduct inquiries in matters relating to the subjects or issues mentioned under the Convention on the Rights of the Child. It was observed that such powers do not include instances such as the present one, where the matter is concerning the maintenance of discipline in the school. It was further observed that the position of the principal of the school is that of a guardian. He is empowered to take necessary action to ensure the maintenance of discipline and morality in the school and such power cannot be interfered with by the first respondent.

The Court ultimately ruled that the first respondent did not have the power to issue an interim order directing the school to allow the child to attend classes. It quashed the interim order issued by the first respondent, stating that the order was arbitrary and illegal and hence had zero legal validity. 

PDA between Richard Gere and Shilpa Shetty

This is an extremely popular incident that occurred around 17 years ago, but the verdict for the same was passed in 2023, by the Mumbai Sessions Court. A case of obscenity was filed against Shilpa Shetty on the grounds that she committed an obscene act by not resisting a kiss on the cheek by a fellow Hollywood celebrity.

Facts of the case

  • Shilpa Shetty was present at a public event at Sanjay Gandhi Transport Nagar in Delhi, in April 2007. She was accompanied by a popular Hollywood celebrity, Richard Gere and the said event was organised to create awareness regarding AIDS.
  • It was reported that Richard Gere hugged and kissed Shilpa Shetty on her cheeks, at the event, in order to spread awareness that such acts were safe and the transmission of HIV does not take place through hugging and kissing.
  • However, this act of Richard Gere was heavily criticised in the country. The criticism was also directed towards Shlipa Shetty for not resisting the act.
  • Furthermore, a complaint was filed before a Judicial Magistrate Court in Rajasthan, for registration of an FIR against both the actors for kissing in a public place.
  • As a consequence of the complaint, an FIR was registered against both the actors under Section 294, as well as some other relevant provisions of the Indian Penal Code, 1860, the Information Technology Act, 2000 and the Indecent Representation of Women (Prohibition) Act, 1986.
  • The actress had filed for her discharge from the offences in 2017. She contended that the allegation against her that she did not resist the kiss, would in no scenario make her a co-conspirator or an accused in the crime and that she would not be liable for the commission of the offence of obscenity, since the act was not committed by her, but was committed against her.
  • A Magistrate Court in Mumbai, in this regard, had upheld the contention of the actress and discharged her from the crime in January 2022. The Court had observed that the charges against her were baseless and that she was a victim of the alleged acts committed by the other accused, that is, Richard Gere.
  • The aforementioned order of the Magistrate Court was challenged by the Rajasthan Police and the Mumbai MRA Marg Police, by filing a criminal revision petition before a Sessions Court in Mumbai.

Issues raised

Whether the actress had committed an offence of obscenity under Section 294 of the Indian Penal Code, 1860 by not resisting a kiss from a fellow celebrity at a public event?

Judgement

The Mumbai Sessions Court in April 2023, dismissed the appeal filed by the Rajasthan and Mumbai Police and upheld the order passed by the Magistrate Court, discharging the actress from the alleged crime, stating that the obscenity was not evident on the part of the actress and there was also no evidence of annoyance by the complaint.

The Court observed that a woman cannot be said to be participative or a co-accused if she was groped or touched in a public place or on public transport. It ruled that such a woman cannot be held for illegal omission and it would not make her liable for prosecution.

Hugging in the Kolkata Metro

In a popular and disturbing case of moral policing, a couple was beaten up by some old and middle-aged people in the Kolkata Metro, in 2018. The only act they committed was that they hugged each other, which reportedly disturbed an old man around them. This sparked a debate between the couple and the old man. The couple tried to convince them that they weren’t actually hugging, but the boy was instead covering the girl to protect her from being groped. However, the old man refused to listen to him and continued to argue. The old man argued that the couple was polluting the atmosphere and that they must visit a bar instead of hugging in the metro. When the boy confronted the old man for his arguments, he was supported by the other old and middle-aged passengers. All of them warned the couple of serious consequences for the argument.

Furthermore, when the station arrived, around 5-6 old and middle-aged men pulled the couple out of the metro and started physically assaulting the boy. The frustrated men beat and physically assaulted the girl as well when she tried to save the boy from them. They were finally rescued after the intervention of the youth and women passengers nearby. However, no action was taken against those men since no police complaint was filed by the couple.

This incident sparked a debate on PDA and moral policing. A large number of people protested against the incident and moral policing in general. The youth protested by hugging each other in various metro stations across Kolkata.

Although the argument given by the boy might or might not be true in that particular instance, it was a valid reason since it is a well-known unfortunate fact that women face harassment and groping on an everyday basis while using public transport. Even otherwise, if the argument given by the boy wasn’t true and the couple hugged intentionally and not because of what they were saying, the group of old men had no right to assault the couple. Instead, the old men committed the offence of outraging the modesty of the woman by physically assaulting her. 

This particular incident highlights the extent to which simple acts of PDA are considered obscene and are often used as a ground to harass a couple, mostly by moral policing like in the above instance or sometimes by criminal cases.

Kozhikode cafe attack

In October 2014, around 20 members of a certain group broke into a popular cafe in Kozhikode, in Kerala and vandalised the windows, chairs, and the entire cafe in general, claiming that the cafe was providing space for immoral activities, particularly, holding hands, hugging and kissing.

A campaign was initiated against a cafe named DownTown, after a certain news channel ran an alleged investigative report claiming that the cafe was allowing youngsters to carry out various immoral activities, particularly holding hands, hugging and kissing. Drugs were also claimed to be distributed. However, the channel did not produce any evidence supporting their claims concerning the distribution of drugs. The only evidence that was presented by the channel was a video in which a couple was kissing. It also claimed that the cafe was luring youngsters by providing free wifi.

This led to a protest against the cafe and it was vandalised by a group of 20 young people who broke into the cafe on an afternoon in October. The protestors claimed that they had complained about such activities to the police and they were forced to act the way they did, since the police did not take any action. The protestors claimed that they had no problem with such activities being carried out in private, but they would not allow such activities in public places, as they were immoral.

This incident of moral policing was condemned and opposed by youths across the country. Demonstrations called ‘kiss of love’ protests took place across urban cities in India, such as Kochi and New Delhi. Several young people gathered at the demonstrations to openly hug, kiss and show affection by way of simple acts, to challenge moral policing.

Attack on Swiss tourists

This instance of moral policing led to an unfortunate incident, which had the effect of harming India’s reputation across the world. A Swiss couple was attacked and morally policed by a group of boys near Fatehpur Sikri. 

The Swiss couple was in Fatehpur Sikri as a part of their tour when they saw a group of boys approaching them near Tehara Gate, which ended up with the couple being physically assaulted and badly injured.

The group of boys, which consisted of 3 minors and 2 adults, said that they saw the friendly couple from a distance when they were making some inquiries about Fatehpur Sikri. One of the boys stated that, sometime later, they saw the couple being intimate. He said that one of them suddenly assaulted the couple, following which all the members of the group joined him. They initially began assaulting the man, but the woman also got injured when she tried to save him. They admitted that they assaulted the couple with stones and sticks. The victims, however, rejected the claims that they were being intimate. They instead said that the boys were forcing the couple to take selfies with them and then them when the couple resisted.

The police arrested all the accused in this case on charges of voluntarily causing hurt and under other relevant provisions of the Indian Penal Code, 1860. The boys later regretted the crime and wished to apologise to the couple. This incident highlights the risks of PDA in India.

Moral policing in a museum in Kerala

This particular incident highlights the misuse of power and unnecessary moral policing by the police against the couples on the grounds of indulging in PDA, irrespective of whether they had committed it or not.

This incident took place in February 2017, when a couple was sitting in the park of a museum in Thiruvananthapuram, Kerala, when they were morally policed by two female police officers for sitting together.

The man had reportedly kept his hand on the shoulders of the woman when the two police officers approached them and asked them if they were married. The police began morally policing the couple when they said they were not married. They told them that such behaviour in public was vulgar.

The man then started a live video on social media to record the entire incident. He protested and tried to call out the unnecessary and invalid remarks of the police officers by questioning how their behaviour was vulgar when all they did was sit together with his hands around the woman’s shoulder. He repeatedly asked the police officers if they saw them kissing or indulging in any other act that could be termed vulgar, to which the police officers replied with silence.

One of the police officers was heard telling the couple that they would inform their parents and then decide what needed to be done, including whether to get the couple married off or not. The police officer was heard saying, “All of this is not permitted here”. 

This was followed by the arrest of the couple by the police officers, who were then joined by two other male police officers. It was also reported that one of the male police officers abused the couple, particularly the woman. The police stated that the couple resisted providing their identities and hence, they were arrested for the offence of creating a public nuisance under Section 290 (punishment for public nuisance in cases not otherwise provided for) of the Indian Penal Code, 1860.

After this incident, the Kerala State Police Chief apologised for such an act by the police and informed that an inquiry was initiated against the concerned officers. The State Police Chief reiterated that the police were a law enforcement agency and not a moral keeper of the society. He stated, “The law of the land is very clear. No one has the right to disturb or harass any couple anywhere, more so in public places. In our country, we impose self-restraint on public display of affection (PDA), due to our culture and tradition, though there is no legal ban on it.”

All of the incidents discussed above highlight the social and cultural norms of Indian society, which are mostly against PDA. Although simple acts of PDA are not illegal in India, one might definitely encounter moral policing, either by the general public or by the police. Simultaneously, in valid cases of PDA and instances where a couple is actually indulging in PDA, it has to be kept in mind that simple acts such as holding hands, hugging, etc. might be permissible, but one must not go beyond such simple acts and a certain limit in public places considering the social and cultural norms of society, as getting too intimate can turn obscene and one might land into legal trouble.

Other legal provisions/PDA regulations in India

Apart from the provision of obscenity under the Indian Penal Code, 1860, several other regulations are available across India, depending upon the State legislation. Some of the provisions concerning PDA in a few cities of India are as follows-

Mumbai: Under Section 110 of the Bombay Police Act, 1951, charges may be filed against a couple if they are found to be intimate in public places.

Delhi: A couple might be charged with a fine of Rs.50 if caught getting intimate or cozy in public places. However, it is rarely executed.

PDA regulations across the world

PDA is a sensitive and controversial topic, not merely in India, but in several other parts of the world as well. Irrespective of your personal views on the subject, one must surely keep these in mind for their own security. Some examples are as follows-

Japan: Public display of affection is not very prevalent in Japan. People usually bow to each other.

Indonesia: It is largely a Muslim-populated country, strictly following Islamic traditions. Kissing in public places or any such sort of public display of affection is considered taboo.

Middle East: Most of the Middle Eastern countries do not allow any kind of public display of affection. The penalties for any such acts can be severe.

Conclusion

Public display of affection ranges from a mild handshake to compassionate kissing. However, the essential element of public annoyance must be established in order to bring an act within the scope of an obscene act punishable under Section 294 of the IPC. It is equally important to note that the boundaries or extent to which PDA can be performed, must also be kept in mind, given the cultural and societal norms of the concerned place. This is because the norms of society differ depending on the place. Moreover, the extent of PDA is subjective at an individual level as well. What might seem acceptable to one person, may not be appropriate to another. However, the consideration of boundaries doesn’t mean that even simple acts of PDA are inappropriate.

To conclude, PDA. as such, is not illegal in India. However, caution must be exercised with respect to the extent of such an action. 

Frequently Asked Questions (FAQs)

Is PDA a criminal offence in India?

While PDA is not anywhere declared to be a criminal offence in India, it is often considered and treated as one under the umbrella of obscenity. It depends on the extent of the action. However, even simple actions of PDA may often be considered obscene, given the societal norms and the lack of clarity on the nature of the provision dealing with obscenity under Indian criminal law.

Which legal provision is PDA punishable under?

PDA is often treated as an offence under the scope of obscenity, which is criminalised under Section 294 of the Indian Penal Code, 1860. Under this provision, PDA would be punishable with imprisonment, which may extend to 3 months, a fine or both.

(Note: Under the new legislation, Section 294 of the Indian Penal Code is replaced by Section 296 of Bharatiya Nyay Sanhita, 2023)

Can a person be arrested for PDA?

Although there is no provision criminalising PDA as such, a person can be arrested by the police for the commission of any obscene act under Section 294 of IPC, 1860/296 of BNS, 2023 since it is a cognizable offence.

What changes are made to the provision relating to obscenity under the Bharatiya Nyay Sanhita, 2023?

The Bharatiya Nyay Sanhita, 2023 which has replaced the Indian Penal Code of 1860 has expressly provided a limit on the fine that may be imposed on the commission of an offence under Section 296 of BNS, 2023. The limit on the fine that may be imposed was not provided under Section 294 of IPC, 1860.

Section 296 of BNS, 2023 prescribes a limit of rupees one thousand (Rs. 1000).

Which was the first test propounded for the determination of obscenity?

The guidelines laid down in the case of R vs. Hicklin (1868) were adopted as a test for the determination of obscenity and it came to be popularly known as the Hicklin Test.

Which is the first landmark case relating to obscenity in India?

The case of Ranjit D. Udeshi vs. the State of Maharashtra (1964) is the first landmark judgement rendered by the Indian judiciary relating to the issue of obscenity. This case led to a modified version of the Hicklin test.

Which test is currently adopted in India for the determination of obscenity?

The Community Standards Test, which was adopted in the case of Aveek Sarkar vs. State of West Bengal (2014) is the test currently adopted in India for the determination of obscenity.

Under what provisions can the obscene materials be searched or seized?

A District or Sub-divisional Magistrate may, under Section 94 of the Code of Criminal Procedure, 1973, authorise the police to search and seize obscene materials.

Such power is now conferred under Section 97 of the Bharatiya Nagarik Suraksha Sanhita, 2023 which corresponds to Section 94 of the Code of Criminal Procedure.

References

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