This article is written by Nipasha Mahanta. It is further updated by Upasana Sarkar. It gives a detailed understanding of the concept of public display of affection (PDA) in India and relevant applicable laws. It also states whether kissing is illegal in India or not.

Introduction

Movies are reflective of what the contemporaneous society approves of and what it does not. A few decades back, shots of the protagonists getting cosy would be followed by random clips of birds brushing their beaks against each other or two roses in a slight tilt towards each other, all symbolic of what might have happened. It is a demonstration of something which has happened but cannot be publicly shown. This automatically brings to the corollary that the act in itself is not wrong, but bringing it under the spotlight or painting it in its true colour stimulates raised eyebrows and gaping mouths and might cause Mom/Dad to tap the channel change button on the remote during family television hours. The Economic Times proposes two parameters for Indians to judge whether an act is probable to cause the above-mentioned reactions of shock and disgust; “If one can do something in front of one’s parents, then one can do it in public. This a tricky rule of negotiation for most Indian kids, given that they have never seen their parents even as much holding hands. Again, context matters, meaning that a goodbye kiss at the airport is okay, but smooching in a restaurant isn’t.”

Two years prior, an over-eager Richard Gere had the mob demonstration perusing him when he swooped down and caught performing artist Shilpa Shetty and planted a few kisses on her. The two, incidentally, were on an occasion to enlighten lorry drivers regarding safe sex. News TV hyperventilated, serving up titillation and snitching in equivalent measure on the serial-kissing Hollywood on-screen character. A few dissenters smouldered models of Gere; others yelled mottos requesting the demise of the hapless Shetty. It took the Supreme Court to suspend a capture warrant against Gere and vulgarity charges against Shetty. Much prior, in the mid-1990s, the general population were shocked after Nelson Mandela kissed the on-screen character Shabana Azmi when he came. What’s more, when India’s generally generous tabloids sprinkled grainy cell telephone photos of a Bollywood couple – they were dating around then – supposedly kissing a few years prior, the star diva fussed and seethed and started lawful procedures against the paper.

The Indian Legal System has been scrutinising the different kinds of obscene acts from ancient times. This led to the insertion of Section 294 (now Section 292 of Bharatiya Nyaya Sanhita) of the Indian Penal Code, 1860, which clarifies the criminal nature of obscenity. Though it deals with the nature of obscenity, it does not shed light on the content of obscenity. It does not state the acts or actions that will amount to public display of affection (PDA) in India. The Indian Penal Code neither states the activities that will be considered obscene nor defines the term ‘PDA’ anywhere in the Code. Therefore, the Code has granted this discretion to the courts to determine which acts or actions will be considered obscene and will lead to public display of affection. It will solely depend on the community standards that are driven by collective conscience. The judges of the courts will interpret whether a particular act performed in a public place by individuals would be considered an obscene act or not and attract Section 294 of the Indian Penal Code, 1860. Section 294 lays down provisions that deal with obscenity. This Section was inserted in the Indian Penal Code to strike a balance between individuals’ right to freedom of expression and community standards for maintaining public morality and decency. Section 294 lays down the provision stating that if any person-

• performs any obscene act in any public place, or
• sings, recites or utters any obscene song, ballad or words, in or near any public place,

That can cause annoyance to others, those persons performing such obscene activities will be punished with imprisonment of maximum three months imprisonment, or with a fine, or with both.

Moral policing and public display of affection

The fundamental problem with effective policing is that in a society and custom characterised by high standards of dress, a small number of religious and political groups tend to divide the general population and target the interests of minority groups in an effort to gather support and gain attention and other benefits. Nor is it said that in no time, the idea of good policing is transforming into a racket, whereby the cops badger the nearby and legitimately ignorant residents, by abusing their power.

Moreover, what is hazardous is not that the endeavours are made to uphold Indian ethical quality and Indian society and conventional and moral qualities. However, the issue is in choosing who is the best judge to choose which act is foul or not or which act can be irritating or not. As to ethical quality, the Supreme Court has observed that thoughts of profound social quality are characteristically subjective, and criminal law can’t be utilized as an intent to unduly meddle with the area of individual independence. Democracy is a great deal all the more about simply spreading the thought of majoritarianism. India, a pluralist country, has been fruitful in showing the world the lesson of resistance by offering sanctuary to the mistreated and displaced people of all religions and countries. Regardless, the biased, moderate, and, above all, entrepreneurial individuals who specialise in good policing prefer to impose their own definition of ethical excellence on others. Over time, majority rule governance is put at risk since it hinders progress and other attributes. 

This concept, whether directly or indirectly, has deceived the thought process of the nation’s moral policing. In a fast-paced metropolis like Mumbai, police officers who act as mannequins for the coordinators of the ethical policing movement believe it is inappropriate, regardless of whether an individual, married or not, is publicly holding hands with a woman.

People with different thoughts object to the idea of men and woman travelling together at night, in today’s MNC’s culture. In July 2013, a couple at a beach, had to face arrest by the police merely because the whimsical moral police suspected “immoral activity” between them merely because the woman was not wearing any accessories to demonstrate that she was married. The Khap Panchayat in Haryana, and U.P. are one of the worst forms that moral policing has the potential to take. The extent of interference is so high in such form of moral policing that woman are not permitted to keep cell phones with them, or they cannot wear jeans in the public places, and government are merely mute spectators to such an apparent act of violation of rule of law. Similarly, in the metropolitan city of Kolkata, a girl was prevented from entering a theatre as she was dressed in a skirt.  In early 1990s, a women’s separatist organization called Dukhtaran-e-Millat in Jammu and Kashmir began forcing local women to cover their faces and threatening them with acid attacks. During that period, they also attacked cinemas, video parlours, beauty parlours and wine shops. Recently in the garb of moral policing, VHP has threatened people against celebrating the Valentines’ day, a foreign festival and has warned the people that whoever would try to embrace the western tradition by celebrating Valentines’ day, would be compelled to enter into the marital bond. Thus, it is demonstrated that moral policing can take hazardous forms, if it is not combated.

The line in the middle of innovation and debasement of ethics and society isn’t too thin, yet the narrow-minded and politically roused and childish. Good policing pioneers think that it is advantageous to totally smear this line, and consequently characterise culture and profound quality according to their impulses. The issue does not stay bound to the unusual methodology of good police to depict advancement. What is exceptionally troubling is that these individuals have no respects to the due procedure of law, and they attempt to rebuff individuals all alone through whatever methods accessible or plausible, then be it through savagery, lynching, or whatever else. If moral policing is allowed to continue, then the rule of law would take a backseat and “Might is Right” rule would prevail. Some people could find the act of kissing within the protest to be vulgar, but it is submitted that vulgarity and obscenity are two very different things; former is an aggravated form of obscenity. What is ‘obscene’ is certainly ‘indecent’ but what is ‘indecent’ is not necessarily ‘obscene’. Indecent refers to something not being in conformity with prevailing standards of propriety, modesty or quality of being decent or what is shocking, disgusting or revolting. We are not here confronted with a combination of words ‘obscene or indecent’ so as to permit a plea that the words are intended to convey a single idea. Indecency is not the same thing as ‘obscenity’ and it has a broader connotation.  It is easier to illustrate than define, and I illustrate thus for a male bather to enter the water nude in the presence of ladies would be indecent, but it would not necessarily be obscene. But if he directed the attention of a lady to a certain part of his body, his conduct would certainly be obscene. They might perhaps be roughly expressed thus in ascending scale – positive, immodest; comparative-indecent; superlative- obscene. These, however, are not rigid categories. The same conduct, which in certain circumstances may merit only the milder description, may in other circumstances deserve a harder one. Indecent is a milder term than ‘obscene’, as it satisfies the purposes of this case, if the prints in question are indecent, I shall apply that test.”

On the off chance that the contention are that there is a probability that a portion of the individuals would have felt deprivation of profound quality or would have felt irritated at the typical kissing done by the offended party, then the advice presents that Sexual therapists let us know of persons who are pure to the point that they have their susceptibilities stunned by seeing a lady’s shoe showed in a shop window; others have their humility insulted by listening to wedded individuals discuss turning in; some have their unobtrusiveness attacked on seeing in the store windows a sham wearing a girdle; some are stunned by seeing clothing, or listening to it discussed generally as “unmentionable”; still others can’t tolerate the notice of “legs,” and even talk about the “appendages” of a piano. Indecency is, in this way, just a quality or commitment of the review mind. It is absolutely in light of this non-target character of restriction that promoters of flexibility of declaration in writing view the concealment of vulgarity with extraordinary trepidation. In this way, the standard ought to be of a sensible individual.

Morality is subjective

Social morality is subjective in nature, and so it cannot be used unnecessarily by the Criminal Code to limit individuals’ right to privacy. Morality and criminality are not synonymous. The courts, while passing a judgement, should be sensitive enough to understand the changing moral viewpoints and notions of the people of the State. It must also take into consideration the effect of Section 294 on modern society’s norms and evolving definitions of obscenity. The test for determining whether public order would be disrupted by certain issues or acts is done by the Judiciary of the country.

In the case of Prabhakaran V. V. vs. State of Kerala (2022), the petitioner had filed a complaint against the accused under Section 294(b) alleging that the accused has used abusive and obscene words towards him. The accused submitted a petition in the Kerala High Court requesting to quash all the proceedings including Section 294(b) issued against him. The High Court of Kerala observed that unless the words used by the accused caused any sexually impure or filthy thoughts in the mind of the heaters, it would not amount to the commission of an offence under Section 294. Therefore, the Kerala High Court accepted the petition of the accused and quashed all subsequent actions and proceedings.

Morality differs from one person to another

The law of the State does not punish any individual for expressing unwelcomed views or opinions. However, a compromise between social interests and the right to free speech is necessary. It is the duty of the Indian Judiciary to protect the right to freedom of speech and expression, which means that it cannot be curtailed unless the circumstances that result from granting it are urgent and harm the interests of the community. The Court is permitted to do so only when the threat that is expected is not improbable, detached, or unrealistic. The Courts, in various judgements, have repeatedly stated the importance of acknowledging a balance of rights between the complainants and the accused so that the right and valid countervailing interests refrain from terminating each other. 

In the case of Prafulla Kumar Jaiswal vs. The State of Madhya Pradesh (2023), two complaints were registered in writing to the police station located in Bihta village, Madhya Pradesh by two newspaper Journalists against the accused who had abused them in response to instigation by one other person. According to the complainants, he also threatened to damage their camera and was attempting to manhandle them. They filed complaints under Section 294 and Section 506 of the Indian Penal Code, 1860. It was pending in the District Court before the Judicial Magistrate First Class (JMFC). The accused submitted a petition to the Madhya Pradesh High Court to quash the First Information Report (FIR). Justice Dinesh Kumar Paliwal stated that the prosecution has not clarified what obscene words were told by the accused to the complainants. So the Madhya Pradesh High Court held that in the absence of allegations of annoyance and clarity in obscene words, as stated by the complainants, Section 294 of the Indian Penal Code cannot be applicable. The Madhya Pradesh High Court observed that the necessary ingredients for an offence under Sections 294 and Section 506 of the IPC could not be derived from the contents of written complaints on the basis of which an FIR was registered nearly a month later, or from recordings of the witness statements under Section 161 of the Code of Criminal Procedure, 1973. So this case will not attract Section 294 of the Indian Penal Code, 1860.

In the case of N.S. Madhanagopal and Another vs. K. Lalitha (2022), the tenant filed a case against the landowner under Section 294 of the Indian Penal Code for using abusive words when work of laying PVC pipes was being carried out. The complainant filed a suit stating that the accused had used offensive language against him. The Supreme Court of India observed that abusive or defamatory words cannot always be considered obscene in nature. Therefore, the accused cannot be punished under Section 294(b) of the Indian Penal Code.

Did Indians kiss in the past 

Among disciples of Hindutva, a moderate belief system that likens Indian character with Hindu qualities, kissing openly is hostile to Hindu—and hence, as one progressive previous clergyman said on various events well before the present dissents began, open kissing is just not Indian. Vedic Sanskrit texts, dating back to 1500 BC, apparently contain the first mention of a kiss in writing. (A caveat from a researcher: “This does not mean that nobody kissed before then, and it doesn’t mean that Indians were first to kiss.”) India’s famous epic poem and one of the world’s oldest literary works, The Mahabharata, composed sometime between 3000 BC and 1500 BC, mentions kissing. The Radhika Santwanam, a collection of erotic poetry from a courtesan in a court in southern India from the mid-18th century, describes a kiss in fairly graphic detail: Move on her lips/The tip of your tongue/Do not scare her/By biting hard. In Kama Sutra, the definitive epic of amour, the scholar Vatsayana devotes a chapter to the art of kissing. He painstakingly details some 30 types of kisses – straight, bent, turned, press, nominal and throbbing are some among them. Ironically enough, Atish Patel of The Wall Street Journal has pointed out that anthropological evidence suggests India may have been the real birthplace of the potentially misnamed French kiss.

Laws relating to public display of affection in India

This is not a settled dimension of obscenity laws in India. Most of the charges against such act are brought under Section 294 of the Indian Penal Code (IPC). Section 294 of the IPC states:

Whoever, to the annoyance of others,
(a) does any obscene act in any public place, or
(b) sings,  recites or utters any obscene songs, ballad or word, in or near 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.

It holds a great amount of veracity when, in Zafar Ahmad Khan vs The State (1962), the Allahabad High Court stated that it is an essential requisite that the obscene act or song must cause annoyance. Annoyance refers to a mental condition, and hence, it has often to be inferred from proved facts. When the accused addressed openly two respectable girls who were strangers to him, in amorous words suggestive of illicit sex relations with them and asked them to go along with him on his rickshaw, he was held to have committed an obscene act. Indecent exposure of one person or sexual intercourse in a public place will be punished under this section. The prosecution must prove

• that the accused did some act; or that the accused sang, recited or  uttered any obscene song, ballad or words;
• that this was done in or  near a public place;
• that it was of an obscene nature;
• that it caused annoyance to others. 

An FIR merely alleging the utterance of obscene words without mentioning the objectionable words is liable to be quashed, being vague.

In case of a conviction under this Section of the Indian Penal Code, a person shall also be liable for an offence involving a breach of the peace within the meaning of Section 106, Criminal  Procedure Code, 1973. Annoyance should be directed towards the party who is being assaulted. The inclusion of the public clause is not to ensure that everyone present in a public space agrees to the sexual encounter but to protect the modesty of the victim, who is more likely to be harmed if in public. Courts in India have a relatively large use of discretion permitted, so the court is expected to be wise.

However, the three words of this provision that sow the seeds of extreme arbitrariness are ‘annoyance’, ‘obscenity’, and ‘others’. The utter lack of definition of these words and the vagueness looming overhead provide scope for the policemen to harass and collect unaccounted fines, all of which accrue to their own interests.

Elements of Section 294

The important elements of Section 294 of the Indian Penal Code, 1860, are as follows- 

• One of the important elements of this offence is the performance of obscene acts in a public place.
• The expression “obscene act” is nowhere clearly defined in the Indian Penal Code, 1860. Its meaning is just taken in a general sense as an act that is sexually explicit or offensive in nature, which is not in accordance with the prevailing standards of decency.
• Obscene acts also include verbal forms of obscenity including obscene songs, ballads, or words.
• Another important element is causing annoyance to others. It means that if an act is performed by any person in such a manner so as to cause annoyance to others, it amounts to obscenity. The act performed needs to ensure that it is an obscene act and that the law will not infringe on the right or individual freedom of expression more than necessary.

A person can only be punished under this Section of the Indian Penal Code when all of the above grounds are fulfilled. In the absence of any of the grounds, the conduct or action will not qualify as ‘obscene’.

Obscenity

The meaning of the expression ‘obscenity’ is not properly defined in law. The Dictionary meaning of the term ‘obscene’ is “offensive or disgusting by accepted moral and decency standards.” It is not defined in the Indian Penal Code, 1860. It merely means “lewd, impure, indecent and calculated to shock the moral sense of man by a disregard of chastity or modesty”. Section 294 of the Indian Penal Code was inserted to prohibit any act that can cause annoyance to the public at a large scale. In this situation, the meaning of the word “others” is not restricted to the individual who is the intended victim of the accused’s obscene behavior. Even if opinions differ from one person to another about the definition of the term ‘obscenity’, it is widely known, therefore it is not truly ambiguous.

In the case of Om Prakash vs. State of M.P (1989), the High Court of Madhya Pradesh stated that mere platitudinous utterances signifying the enraged state of a person’s mind would not be sufficient enough to consider such an act as ‘obscene’ and, therefore, Section 294 of Indian Penal Code will not be applicable in such cases.

By introducing the ‘community standards’ test, the court has paved the way for cases like the Bobby Art International, Etc vs. Om Pal Singh Hoon & Ors. (1996), wherein the scenes depicting nudity were contended to be obscene. The court opined that the scenes under contention cannot be viewed in isolation. The court said that these scenes which depicted gross nudity must be in the context of the entire film and with the background in which they were depicted. The movie Phoolan Devi depicts the social menace of torture and violence against a helpless female child, which transformed her into a dreaded dacoit. The object of the scenes was not to titillate the cinemagoer’s lust but to arouse in him the sympathy for the victim and disgust for the perpetrators. The court states that nakedness does not always arouse baser instincts. This case clearly shows a shift in the position of the court on the subject of ‘obscenity’. The court is now under an obligation to view the publication as a whole and not to just view the scenes depicting nudity in isolation. The dominant test, therefore, is whether the publication or work offends the standard set out by contemporary society for determining what is ‘obscene’ and what isn’t. The test, therefore, is whether an ordinary rational and reasonable man would be offended by the work and whether the context in which the obscene scenes are depicted is one of a useful social message or one of arousal of sexual feelings, and this must apply to cases of both Section 292 and Section 294. It is further accepted by the court, in cases like A & B vs. State Thr. N.C.T. Of Delhi & Anr. (2009), has accepted kissing and hugging in public to be simply a symbol of love and compassion and, therefore incidental and not obscene and protected by the Right to Freedom of Speech and Expression as guaranteed by Article 19(1)(a) of the Constitution of India.

In the case of Zahir Hussain vs. State Reps (2021), the High Court of Madras held that the definition of ‘obscenity’ is not given in the Indian Penal Code, 1860. In this case, the complainant stated that the accused had used filthy language and threatened to end his life if he insisted on his portion of the partnership firm. So the complainant filed the case under Section 506 and Section 294(b) of the Indian Penal Code, 1860. So the Court while interpreting the term ‘obscenity’ stated that while Section 294(b) of the IPC allows for prosecution under Section 294(1) of the IPC, the definition of “obscenity” under Section 292(1) of the Indian Penal Code does not apply to the offence of using obscene words by the accused in this particular case. Therefore, in order to be punished, the alleged words must be lewd, target a sensual interest, or refer to depraved or corrupt individuals.

Community standards are driven by collective conscience

The prevalent collective consciousness of society establishes standards for morality and immorality. When a court determines whether an act falls in the category of PDA or not, it takes into consideration the majority views of the society, which includes the norms and values of society. With the changing times, these views are also changing and the courts are passing orders in accordance with the changing thoughts and mindset of the people of our country. 

The case of Ranjit D. Udeshi vs. State of Maharashtra (1964) was inspired by the ‘Hicklin Test of Obscenity’ that was imported from British case law. In the British case of Regina vs. Hicklin (1868), Chief Justice Cockburn, while determining the ‘test of obscenity’ stated that “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influence, and into whose hands a publication of this sort might fall. Further commenting that the criminal character of the publication is not affected by an ulterior object which was benign.” In the present case, the petition was filed against Ranjit D. Udeshi, a bookstore owner who was charged with possessing and selling obscene material in the form of a book called Lady Chatterley’s Lover, by DH Lawrence. The book contained contents dealing with detailed sexual intimacies. So it became necessary to determine whether or not the charge filed under Section 292 would be applicable, along with the standard for obscenity under Section 294. The Supreme Court of India observed that the ‘test for obscenity’ will be based on contemporary community standards that are driven by collective conscience. The Apex Court also held that artistic, scientific, or literary merit could be considered as a valid ground for defence against charges of obscenity.

In case of Chandrakant Kalyandas Kakodar vs. State Of Maharashtra And Ors. (1969), the Supreme Court again had occasion to deal with the concept of obscenity. While the Court seemed to follow the Udeshi case, in effect, the Court in Kakodkar expanded the freedom of writers by going beyond the Udeshi doctrine. The court stated that, in addition to considering the fill in general when determining whether the parts being referred to are truly profane or not, those parts must also be considered independently and without any other input, free from the connection established by the work itself. In doing so, the court set out a greatly thorough test that permitted each work of writing, which included even a smidgen of “vulgar” material, to be banned. On the other hand, in Kakodkar, the Supreme Court took an alternate position and made it the obligation of the court to take general perspective of the work under inquiry and not simply consider parts of the fill in as was set down in Udeshi which supported a more restricted perspective. However, the court, through Udeshi and Kakodkar did establish a test for obscenity which was also known as the Hicklin Test. 

The Hicklin Test was laid down by the Queen’s Bench in Regina vs. Hicklin (1868). The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. The Hicklin Test allowed for a publication to be judged for obscenity based on analysis of isolated passages of the publication rather than the publication as a whole. Works can be judged by their apparent influence on most susceptible readers, such as children or weak-minded adults. The Kakodkar case, although retained the Hicklin Test, made it mandatory for the court to take into account the entirety of the publication and not just isolated out-of context passages and thereby changed the position of law on what can be considered obscene. 

The recent case of Aveek Sarkar vs. State of West Bengal (2014), has further altered the position of the court in determining whether a publication is obsolete or not. The Supreme Court has held that a photograph of Boris Becker and his fiancee, in the nude, is not “obscene” within the meaning of Section 292 of the Indian Penal Code. The Supreme Court has based its judgement on the overall publication and not just isolated aspects. In doing so, the Court has done away with the Hicklin Test and introduced the “Community Standards” test borrowed from the Roth v. United States (1957) judgement.

 In contrast to the Hicklin Test, which was focused on individual or isolated aspects of an entire work that could be deemed obscene, as well as its impact on “vulnerable” sections of society, the contemporary community standards test seems to be saying that if (on applying community standards), a particular work “has a tendency to arouse feeling or reveal an overt sexual desire“. Therefore, the Supreme Court, through the Aveek Sarkar case, has to a certain degree clarified that for a publication to be obscene, it must be viewed in its entirety and attention must be paid to the entire publication under contention, not just the isolated passages which contain material which is ‘obscene’. However, the Supreme Court has not referred to any judgments which over-rule this test though cases like Memoirs v. Massachusetts (1966) and Miller v. California (1973) have superseded the Roth Test. Further, the Supreme Court has also not taken the Roth test in its entirety. The Roth test as enunciated in the Roth v. United State (1957) case was envisaged to be a three-pronged test, Community standards constituted the first prong, but under the second prong, the material had to be “patently offensive”, and under the third prong, “of no redeeming social value”. However, the second and third tests under the Roth Test have not been referred to by the Supreme Court which has considered the Community Standards test to be the dominant test for obscenity. 

In the case of Amardeep Singh Chudha vs. State of Maharashtra, (2016), it was held that if any obscene activities are taking place in a private flat which is owned by a private person, it cannot be considered as a public place as it is bought for private use only.

In the recent case where Shilpa Shetty was discharged from the allegations filed against her under Section 294 on January 25, 2022, for kissing Hollywood actor Richard Gere during an AIDS awareness event in Delhi around fifteen years prior. The Hollywood star was seen kissing Ms. Shetty’s cheek on camera footage. It was only recently that the accusations were dropped as “groundless,” with the court ruling that she was the victim of an unwelcome approach. The Radical Hindu organisations were against such an act that took place in a public place as they viewed the kiss as an insult to Indian values. So they protested against the kiss.

Annoyance to others to be interpreted in reference to the general public 

The important question that needs to be considered and addressed from a broader perspective is whether the viewpoint of the people witnessing an incident will alone be taken into consideration or whether the viewpoints of others in the general public who are not present at that moment need to be considered. For this reason, it is not stated in Section 294 IPC that it should be to the annoyance of those who are present at the place of occurrence of that kind of activity. This is because the phrase “to the annoyance of others”, which is mentioned in Section 294 of the IPC means that the action in question annoyed those who were not present on the activity’s premises or precincts. Since annoyance is frequently linked to mental illnesses, it becomes challenging to establish its veracity through conclusive proof. It must be concluded based on the facts and evidence of a case. This was held in the case of Ameer Basha vs. State of A.P. (2010). In the case of Lila Dhar vs. State of Haryana (2011), it was observed that the presence of at least one person is necessary at the time of the commission of PDA in a public place to prove that the accused is guilty of causing annoyance by any obscene activities.

The prerequisite proof of annoyance is required

When an obscene act is committed in some place, the mere fact that it has occurred does not conclude the matter. While going through the provisions of Section 294, one would be able to understand the intention of this Section, which is to prohibit the commission of obscene activities in a public place that can cause annoyance to the public at large. So it is very important to cause annoyance to others in order to attract this Section. If the public present in a particular place is not annoyed by certain acts or activities, it means no offence has been committed. The people present there must consent to the fact that certain activities which have taken place have annoyed him or her. If such a complaint has not been registered, then only action can be taken against the offenders.

Ways to protect oneself from being charged under Section 294 

Kissing in public is usually charged under Section 294 of IPC, which lays down three ingredients to be satisfied for an act to be punished. 

In the event that any of these are not fulfilled, one can’t be held subject under this procurement. Further, there are Supreme Court judgments that may be relied upon to demonstrate that kissing out in the open is not an offence. The subjectivity of the expression “obscene” is a central point. Consequently, it relies upon the way of the demonstration charged whether one can be held subject and one can’t pronounce kissing out in the open an offence by all appearances. Additionally, vulgarity is characterised by society. In the vast majority of India, open presentation of sexual fondness makes individuals uneasy and is viewed as corrupt; subsequently, it is viewed as revolting.

Glance at various cities of India for public display of affection

The three main important metropolitan cities of India, that is, Kolkata, Delhi, and Chennai have implemented Section 294 for preventing PDA in public places-

• In Kolkata, if two persons are seen to be indulging in an act that involves sexual connotation, then they can be sued for committing an offence under Section 292 or Section 293 of the Indian Penal Code, 1860. The provisions of Section 294 lay down the punishment for committing obscene activities or using obscene words in public. 
• In Delhi, if two persons get intimate in a public place, then they can be either charged with a fine for doing so or a complaint can be filed under the Indian Penal Code, 1860.
• In Chennai, the people are much more conservative than other metropolitan cities. The couples living in Chennai did not have much freedom like that of other States. The couples feared even holding hands in public. In recent years, there has been certain liberalization. Therefore, the couples, like the previous years, do not fear holding hands in public. But they certainly avoid getting involved in an intimate act in public places. 
• In Mumbai, if two persons get involved in an obscene act in public, charges can be filed against them under the Indian Penal Code or Section 110 of the Bombay Police Act, 1951. Mumbai is the only State that introduced a specific Section under Bombay Police Act, 1951 for preventing PDA.

Steps taken to prevent kissing incident in Delhi metro

With the changing times and modernisation, every day we hear new incidents happening in and around us. The Delhi Metro network which connects lots of cities with one another became a hotspot for public displays of affection. A video of a young couple kissing suddenly went viral on social media in May 2023. The video showed that a woman was lying on a man’s lap, while they were kissing. All the people travelling in that compartment reported to the Delhi Metro Rail Corporation (DMRC) that incident as “objectionable behaviour”. The Corporation promised to look into the matter and to monitor such instances so that henceforth such kind of incidents do not occur. As the video went viral on online platforms, it was highly criticised by many. Fierce debates took place about moral policing and public obscenity in the country. It was stated by the public and media that the metro is not a place for public displays of affection of any kind. So no sexual acts taking place in a train coach can be appreciated. These kinds of obscene acts are punishable under Section 294 of the Indian Penal Code, 1860.

As these kinds of incidents were happening so often, the Delhi police with the help of Delhi Metro Rail Corporation (DMRC) and Central Industrial Security Force (CISF) officials, decided to dispatch teams of constables and head constables dressed in civilian attire, who would monitor such incidents occurring in Delhi Metro. They took the initiative to deploy over 100 personnel in civilian clothes within the train compartments to keep a check on the occurrence of obscene activities inside the Delhi Metro. This effort was taken by the Delhi police to prosecute offenders on the spot and take further legal action against them. At least two Delhi Metro officials and two CISF personnel were decided to be deployed along with the police personnel, who will assist them in maintaining surveillance. It was also decided to deploy female constables in plain clothes, who will keep an eye on the women’s compartments and prevent the occurrence of such instances. Uniformed police personnel were also decided to be deployed in the train coach for safety and security measures. This initiative was taken by the Delhi police at the request of DMRC. They were worried about the rising number of public obscenity incidents. So they requested the Delhi police to strengthen patrolling both at stations and inside the Metro compartments. The DMRC also made squads of three to four personnel. Their job would be to instantly prosecute offenders on the spot, who would perform any kind of obscene activity.

If any person is caught performing any such obscene act, A fine of  Rs 200 would be imposed upon him under Section 59 of the Delhi Metro Railway (Operation and Maintenance) Act, 2002. If any obscene act is considered to be more serious, then those persons performing such acts will be charged under sections of the Indian Penal Code. To keep a check on the occurrence of obscene activities like kissing in Delhi Metros, CCTV cameras were decided to be installed within the Metro compartments, which will closely monitor individuals and if any person gets involved in any kind of inappropriate behaviour or acts, it will be promptly notified to the Delhi police. If a commission of any obscene activities is considered more serious, then the DMRC might file a complaint against those individuals committing such obscene acts to the Delhi police under Section 294 of the Indian Penal Code. In such situations, the police officials can arrest them and produce them in the Court. Since it is a non-compoundable offence, no compromise can take place between the complainant and the accused. Though, the accused can apply for bail, as it is a bailable offence.

Bengaluru couple kissing incident in metro train

In 2024, another video in Bengaluru went viral where it was seen that a boy and a girl were hugging each other. The person who recorded the video claimed that they were also kissing. While uploading the video on social media, the person tagged the official account of Bangalore Metro Rail Corporation Limited and Bengaluru City Police, asking them to take action against such incidents. When this post was shared on the online platform, a mixed opinion of the people was seen. While some were against such acts of public kissing and hugging, others stated that the person recording and sharing the video must be penalised as it has hampered the couples’ right to privacy. They were of the opinion that it was illegal to take videos and photos of people without their consent and is punishable under Section 354C of the Indian Penal Code. Therefore, a mixed opinion was seen in this PDA incident and there is no public consensus about it. Public display of affection is considered offensive to some people, whereas it is normal to others who accept that with changing times people need to accept changes without getting annoyed. To understand the concept of PDA and obscenity, the definitions of these expressions must be inserted in the Indian Penal Code by the Legislature.

Important judicial pronouncements

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

In the Ranjit D. Udeshi vs. State Of Maharashtra (1964), the Supreme Court said that the word obscenity is really not vague because it is a word that is well understood even if persons differ in their attitudes to what obscenity is and what is not. The court, however, did lay down some qualifying factors which may aid in determining whether an act is obscene or not:

•  That which depraves and corrupts those whose minds are open to such immoral influences.
•  That which suggests thoughts of a most impure and libidinous character.
• That which is hard-core pornography.
• That which has a substantial tendency to corrupt by arousing lustful desires.
• That which tends to arouse sexually impure thoughts.
• That which passes the permissive limits judged from our community standards.

Ramdutt Singh And Anr. vs. Gram Kutchery Of Naudiha (1957)

In the case of Ramdutt Singh And Anr. vs. Gram Kutchery Of Naudiha (1957), the respondent of this case stated that he was threatened by the petitioner that his land would be plowed up and his house’s passage would be completely blocked by a thorn hedge when a domestic dispute arose between them. The case was filed in Patna High Court by the petitioner, who was held accused by the Gram Panchayat Court. The respondent further contended that the petitioners uprooted the pegs and threw them away without a thought. While this case was taken to the Gram Panchayat, witnesses of both sides were examined by them and it was observed by the Panchayat Court that the petitioner was guilty under Section 294 of the Indian Penal Code, 1860. It was stated by the Panchayat after hearing both that the uprooting had resulted in the demolition of the ridge and the merging of the respondent’s land with the petitioner’s land, as well as the additional repercussions of blocking the respondent’s route by raising a thorn hedge is an act where the accused was found to be guilty under Section 294 of the Indian Penal Code. The Patna High Court observed that merely annoying a person does not constitute an obscene act unless any obscene activities are done or any obscene song is sung or recited or any obscene words have been uttered relative to mischief. They might have given displeasure to the respondents but it does not mean that the petitioner would be held guilty under Section 294 of the Indian Penal Code, 1860.

State of Maharashtra vs. Joyce Zee (1973)

In the case of the State of Maharashtra vs. Joyce Zee (1973), the Bombay High Court observed that it is doubtful whether places like Hotel Blue Nile could be considered to be such public places within the meaning of Section 294 of the Indian Penal Code as it requires admission fee to be paid to attend cabaret shows. Similar circumstances also took place in this case. It was also stated by the Court that if an adult person is willing to pay the admission fee to attend such shows, he or she always runs the risk of getting annoyed by obscene activities that will take place around that person. In this case, Section 294 cannot be applicable as it is used only for punishing those persons who indulge in obscene acts in any public place, which annoys the other general public. This Section states that punishing people indulging in obscene activities needs to be in a public place, which is to be used by the public at large. Those places that require admission fees and where the public is not allowed to enter without payment, that is, have no right to enter, cannot be said to be a public place. In such circumstances, Section 294 of the Indian Penal Code cannot be invoked to punish any people who are involved in any sexual or obscene activities.

Shreya Singhal vs. Union of India (2015)

In the case of Shreya Singhal vs. Union of India (2015), it was held that determining whether a particular act will be considered obscene or not, and will disturb the current life of the community or just an individual leaving the tranquillity of the rest of society undisturbed depends on the collective consciousness of society.

Narendra H. Khurana vs. Commr. of Police (2003)

In the case of Narendra H. Khurana vs. Commr. of Police (2003), the High Court of Bombay observed that the performance of cabaret dances, which includes indecent and obscene acts, would not invoke Section 294 of the Indian Penal Code as it will not create annoyance to others who will not watch it.

Indian Hotel & Restaurants Assn. vs. State of Maharashtra, (2006)

In the case of Indian Hotel & Restaurants Assn. vs. State of Maharashtra (2006), it was held that mere performance of an act cannot be considered as an obscene act or sufficient enough to prove that it will cause annoyance to others. Then, it will be like saying an intimate dance performance in Hindi movies will also affect the public who are watching those movies. Therefore, the dance sequence and the dancers, who are skimpily dressed, cannot be considered as obscene acts disturbing the public order. Sufficient evidence must be provided to the court to establish that a particular act is creating annoyance to others.

Dhanisha vs. Rakhi N. Raj (2012)

In the case of Dhanisha vs. Rakhi N. Raj (2012), the High Court of Kerala observed that when an obscene word or words are spoken by any person, it is a matter of fact to determine whether or not those words have the potential to corrupt the mind of the people present at that time and whether their minds are to be affected by such immoral influences. This can be determined by taking into account the meaning of those words that are spoken by a person. The Court also stated that the tone and tenor of those words, along with their meaning must be taken into consideration. Also, whether the person hearing those words is likely to experience mental shock upon hearing them or not, and whether those words are actually intended and used in an obscene sense in that area or locality, are all factual basis that must be looked into before deciding a case, and not just based on the evidence that may be presented.

Dr. K.K. Ramachandran vs. Sub Inspector of Police (2022)

In the case of Dr. K.K. Ramachandran vs. Sub Inspector of Police (2022), the petitioner filed a case against a doctor, who was the respondent of this case. According to the petitioner, her child was taken to a hospital as he developed bleeding from his penis. During the time of his examination, the child started to urinate. This made the respondent angry and started to use some abusive words against the petitioner which outraged her modesty. Not only that, he had also shown some obscene signs with his fingers, while using those obscene languages. The Kerala High Court stated that to invoke Section 294 of the Indian Penal Code, it is important to establish that the accused has sung, recited, or uttered any obscene song or used any word in or near any public place, which has caused annoyance to others. The Court observed that in this case, the incident took place in the consulting room at the hospital. So it cannot be considered to be a public place. So Section 294 IPC cannot be used to punish the respondent in this case. The Court also held that Section 354 of the Indian Penal Code cannot be invoked in this case as the words uttered required to arouse sexually impure thoughts in the mind of the hearer. But in this case, it failed to satisfy the basic requirements of that Section. Therefore, neither Section 294(b) nor Section 354 of the Indian Penal Code, 1860, can be invoked to punish the accused. 

Lalit Nandlal Bais vs. State of Maharashtra (2023)

In the case of Lalit Nandlal Bais vs. State of Maharashtra (2023), the Police Sub-inspector of the police station of Nagpur District of Bombay received secret information. It was about an obscene dance performance taking place at a Banquet Hall in Tiger Paradise Resort and Water Park, Tirkhura. The informer informed the police officials that the people watching those women perform that obscene dance, who were scantily dressed, were showering dummy currency notes on them. The police officials on the basis of this information raided the said Banquet Hall and found three bottles of foreign liquor. The petition was filed in the Bombay High Court under Section 294 of the Indian Penal Code, along with various other sections of the Police Act, 1861. The Court observed that no allegations against the accused have been submitted stating that they have indulged in any obscene activities or any FIR has been registered. There was only one allegation against the accused that states the accused were dressed in short skirts and were dancing in a provocative manner. The Court stated that their way of dancing or making gestures to the police officials cannot be regarded as obscene acts that have caused annoyance to others. But the Court was of the opinion that while dressing up one should be mindful of the general norms and values of society which is prevalent in Indian Society. It also opined that women wearing swimming costumes or similar attire are common and acceptable in this present era. The Court concluded by stating that the women in films and cinemas also dress in such a manner that it passes through censorship, and there it is not creating any annoyance to the audience. No complaints or FIRs have been lodged in the application based on which the accused can be held guilty of any offence. Therefore, the Court held that Section 294 of the Indian Penal Code would not be applicable in this situation, taking into account the progressive view and thoughts in this matter with the changing times.

Monu Kumar vs. State of U.P. (2024)

In the case of Monu Kumar vs. State of U.P. (2024), the police arrested the applicant for making obscene remarks towards women in a public place. The police registered an FIR under Section 294 of the Indian Penal Code, 1860, against the applicant, though there was no independent witness of this arrest. So the applicant filed a petition in the Allahabad High Court. It was contended that neither there is any independent witness to that incident nor recordings of the statements of any woman with their names. According to the applicant, the police officials did not follow the protocols while arresting him and violated the provisions of Section 100 and Section 165 of the Code of Criminal Procedure, 1973, at the time of his arrest and investigation process. He also stated that the investigation had taken place solely on the statements of the police personnel. He, an undergraduate student, also contended that he was returning from his aunt’s house when he was wrongfully arrested. The Allahabad High Court scrutinised all the lapses and hasty processes of the investigation done by the police personnel while investigating and preparing the charge sheet The Court observed that the police officials had failed to investigate properly and examine the independent witness, which, in turn, decreased the credibility of the case. The Court also took into consideration the applicant’s future and was of the opinion that an undergraduate student whose career and future prospects are at stake, cannot be jeopardized by these false allegations. It also held that there must be enough proof of annoyance caused to the general public by obscene words or acts to attract Section 294 of the Indian Penal Code. Therefore, the Court concluded by quashing the summoning order, the chargesheet presented by the police personnel, and the proceedings against the applicant, highlighting the importance and requirement of a fair, just, and unbiased investigation in this matter.

Conclusion

The definition of ‘obscenity’ is not precisely mentioned anywhere in the Indian Penal Code, 1860. The definition of ‘obscenity’ is unclear and vague. Therefore, most people take advantage of this Section to harass couples who do not even indulge in PDA. It can be a sister and a brother standing close in a crowded metro or a father and a daughter. So standing close to each other must not be treated as an obscene act unless they are kissing or performing any other sexual activities. If a case is filed in court in such cases, it is the duty of the judges to understand the situation and pass a judgement that will prevent the public from creating an unreasonable fuss. It is also the duty of the legislature to insert the term ‘obscenity’ in the Indian Penal Code and define the term so that no individuals are unnecessarily harassed by the people in public places. It is the judges of the courts who interpret its meaning from time to time with the changing thoughts of the people of society. They are entrusted with the responsibility to find out which actions or words would be considered obscene with the changing times. Few words or activities that may have been considered obscene in the past, might not be regarded as obscene in this recent era as the mentality and the thought processes of the people are evolving with time. Therefore, it is of vital importance to create a balance between the right to free speech and expression and the decency and morals of society, which is entrusted to the Indian Judiciary.

We can see that people at times get furious when they see a boy and a girl kissing or hugging in public places and this creates a lot of fuss. These people start beating the boy for standing close to a girl but do not raise their voice when they see a woman being eve-teased by others, or for a woman who is sexually harassed in public places. In those situations, we can not find them showing their sense of morality. Public display of affection is considered unacceptable in India today in many places. Hugging or kissing in public places in India is taboo. Though India is adopting western style and culture, citizens of India are still not able to accept PDAs in public places. Whenever they find people hugging or kissing in public places, they get agitated. Couples must also understand that PDAs in public places to an extent are alright, but they must not cross a line as many children with their parents who are around them become uncomfortable. So punishing the offender for committing obscene activities in public places becomes very important.

Frequently Asked Questions (FAQs)

What is the meaning of a PDA?

The public display of affection (PDA) means any intimate act committed by a couple done in a public place, which includes holding hands, hugging, kissing, cuddling, and other sorts of physical intimacy.

Whether the offence committed under Section 294 is bailable?

Bailable offence are those where the accused is granted bail in their entirety, which is purely a matter of right. In case a person gets arrested by a police officer, he will be granted bail for any offences of obscenity, as it is not a very serious offence. Section 294 of the Indian Penal Code is a bailable offence.

Whether the offence committed under Section 294 is cognizable?

Cognizable offences are those where a police officer can arrest an offender without a warrant in accordance with the law. Any offence filed under Section 294 of the Indian Penal Code, 1860, is considered a cognizable offence.

Reference

• https://www.bbc.com/news/world-asia-india-65593675
• https://blog.ipleaders.in/public-display-of-affection/
• https://www.cnbctv18.com/india/delhi-metro-pda-police-civilian-clothes-personnel-train-compartment-kissing-16676651.htm
• https://www.theswaddle.com/in-conversation-on-the-indian-couple-who-was-thrashed-for-public-kissing
• https://www.thebridgechronicle.com/opinion/why-public-display-affection-such-big-no-no-india-19863
• https://www.news18.com/viral/video-shows-couple-engaging-in-pda-inside-bengaluru-metro-police-responds-8880852.html#google_vignette
• https://www.scconline.com/blog/post/20https://www.scconline.com/blog/post/2024/06/03/annoyance-to-others-prerequisite-to-invoke-offence-s-294-ipc-allahabad-hc-while-quashing-criminal-case-scc-times/
• 17/06/13/obscenity-public-conscience-or-individual-liberty/#_ftnref22
• https://www.scconline.com/blog/post/2023/10/16/bombay-high-court-wearing-short-skirts-dance-provocative-gestures-obscenity-legal-news/
• https://www.scconline.com/blog/post/2022/12/26/kerala-high-court-reiterates-that-to-satisfy-definition-of-obscenity-to-attract-section-294b-ipc-the-words-uttered-must-be-capable-of-arousing-sexually-impure-thoughts-in-mi/
• https://blog.ipleaders.in/offences-relating-public-health-safety-convenience-decency-morals/#:~:text=Joyce%20Zee%20Alias%20Temiko*%2C%201973,annoyed’%20after%20witnessing%20such%20performance
• https://blog.ipleaders.in/section-294-ipc-punishment/#:~:text=The%20Supreme%20Court%20in%20the,the%20landowner%20of%20the%20complainant.
• https://www.verdictum.in/court-updates/high-courts/section-294-merely-saying-accused-abused-clarity-what-obscene-words-stated-cannot-attract-offence-clarifies-1496698
• https://www.drishtijudiciary.com/current-affairs/section-294-of-indian-penal-code-1860

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