In this article, Kajal Srivastava discusses Legal issues around Public Display of affection.

Definition

“Public display of affection is an act that displays a person’s affection for another person which could be either verbally or physically”.

When I come across the subject matter of showing my affection towards my loved ones it puts me in a dilemma, and I start wondering if the advancements that have been made to the other aspects are acceptable then why not “PDA”, if love is an acceptable act, then why do we need to put restrictions when it comes about expressing the same.

General assumptions regarding PDA

There has to be a clear distinction between what is obscene and what is not, though we cannot deny the fact that there are certain instances when the couples go beyond the definition of PDA, that may produce something which  could be either opposed to the public policy or might have certain negative consequences when it comes to maintaining the social ethics, morality, and decency in the society.

Gone are the times, when the expression of a person’s feelings towards another was restrained only up to sending letters or conveying their lovable expressions through the telephonic conservation.

Which actions qualify as PDA?

• Kissing your partner compassionately in a public place.
• Sensually touching the genitals of your partner in a public place.
• The Act of making out in public.
• Having sexual intercourse at a public place.

Which actions do not qualify as PDA?

• Holding hands of your partner in Public.
• Hugging your partner in public.
• If kissing is done as a means of greeting your partner.
• Expressing your love for your partner verbally.
• Putting your arms around your partner’s arms.

Note – The above list is not all-inclusive. Actions which qualifies and which don’t as PDA are taken from case laws and other secondary sources.

What do we mean by the word obscene?

As IPC has not given any clear definition of the word obscene, but there have been many cases in the apex Court where the matters which have the tendency to deprave and corrupt the mind of those who are open to such immoral influences.[1]

For the application of word obscenity in any of the art which could be either in the form of any book or short film, it must be established that the extent of obscenity was more than the texture of art into the work. The interpretation of the word obscene in its true sense could be ascertained only by the judges in the Court of Law, the portions which are claimed to be offensive and obscene must throw the art into shadow.[2]

Indian Legal Provisions on public display of affection

We don’t find any certain sphere which defines the scope and extent of public display of affection in India, but the majority of the suits are filed under Section 294 of the Indian Penal Code(IPC) which gives the following ingredients to bring an offense within its purview

• An obscene must have been done in public place; or
• The act or song or ballad or words were obscene; and
• Their acts were done by the accused causing annoyance to others.

The guilty is punished with an imprisonment of three months which may extend, or with fine or with both.

• For having a better understanding the landmark case of “Zafar Ahmad Khan v The State”,[3] the Allahabad High Court held that the element of causing annoyance to others must be established. An act of uttering the obscene words in public places which can cause annoyance to the general public will bring the conviction against the accused. The provision for the same has been provided within the meaning of Section 106 of Criminal Procedure Code, 1898 which is identical to the same section of 1973 code.

Does kissing in public amounts to obscenity?

Expression of love through the means of kissing is very prevalent among the couples of the present generation and they consider it as a means of providing strength to their love and mark it as a symbol of expressing loyalty towards their partner. In the Southern State of Kerala putting a restriction over the act of kissing in the name of upholding the moral policing faced a vehement protest from a group of volunteers which gathered support from the other eminent universities across the Nation. A non- violent protest “Kiss of Love” [4]was organized by the youth activists against the non-legal acts of violating the consensual kissing.

It is quite obvious that since time immemorial kissing is used as a means of expressing love which could be strengthened by mentioning the fact that in Kama Sutra a full chapter has been devoted describing the art of kissing which has around 30 verities.

Legality of kissing in Public

• The controversial issue that lies in determining the legality of kissing in public rests with the fact that whether you have the right to kiss in public or not? The answer is an obvious yes, since the Constitution of India by the virtue of Article 19(1)(a) guarantees the freedom of speech and expression to its citizens, furthermore when the counter- argument of reasonable restrictions is taken into account as provided in Article 19(2) it is to be noted that the interpretation of the word obscene is not certain within the meaning as given under Section 294 of the IPC moreover the act should be of such a nature that it can cause public annoyance.
• Furthermore, the Apex Court has said that no suit can be brought against the act of consensual kissing, and Section 294(a) of the IPC clearly states that the act such be of such an extent that it could cause annoyance to others. Moreover the Supreme Court in the case of “S.Khushboo v.Kanniammal&Anr”[5] held that while determining the obscenity of an act the community standards should be taken into account, the intensity of such standards may vary from place to place for example in the metropolitan areas it might be considered as an acceptable act, whereas on the contrary in some places it could be brought within the sphere of indecent demonstration. Certain cases to determine the test of obscenity are as under for example in the landmark case of “Kakodkar v.State of Maharashtra” [6] where the doctrine propounded in the Udeshi case was extended. This case basically extended the doctrine of Udeshi case and the Courts were directed to make a proper inquiry. These two cases found the basis for the implementation of Hicklin test which clearly states that if an act is capable of influencing the mind of others then it will fall under the category of an obscene act.
• Moreover in the case of “A and B vs State the NCT of Delhi” it is held that hugging and kissing forms a part of freedom of speech and expression which is the legit source of showing  love and compassion towards your partner and hence are protected under Article 19(1)(a) of the Constitution of India.

Is it absolutely fine to kiss your Girlfriend in Public?

Under the Constitutional mandate of Article 19 which guarantees freedom of speech and expression, it could be said that the Act of Kissing your Girlfriend is not something which could be brought within the purview of an obscene Act. In order to provide the judicial strength to the same, the recent Judgement of the Apex Court which declared the Right to Privacy as an absolute Fundamental Right can be taken into consideration.

The verdict apparently acknowledges the Legality of sexual orientation under the concept of fundamental safeguards.Moreover it could be said that the Indian society is Changing at a fast pace and the couples are vested with the liberty of expressing their loyalty towards their partners in the form of affectionate acts which might involve a gentle handshake and a greeting kiss, going back to the ancient times and analysing the historical Indian era it is clearly evident that “Sex” between the couples was not considered as a sin instead such subject matters were discussed thoroughly and were treated at par with that of any other General social Issue. The fact which provides relief as of now is that along with the remarkable achievements in every other aspect the India society has managed to abolish the conservative norms and traditions up to a notable extent and in the near future, we may hope to abolish such orthodox set up completely.

Is it illegal to make love in a car in India?

The 21st century has witnessed several vehement oppositions when it comes to expressing their love for their partners.As per Section 294 of the IPC, in order to prove that an Act is obscene, the following ingredients must be there-

• An obscene Act must have been done in public
• The Act or words were obscene
• The Act was done by the accused causing annoyance to others.

However it is to be noted that if a couple is making out in a public transport then the same becomes unacceptable as well as punishable under the stated punitive provisions of the IPC, but on the contrary if the same Act is done in a car and the location where such act happens does not qualify as a public place then it becomes Legal and acceptable since neither it causes public annoyance nor it is done in public. Moreover, the Legality of lovemaking scenes inside the car can be justified by making the statement that nowadays the Bollywood has also started screening the same in movies and releasing such scenes in the movies do not qualify as an obscene Act.

How to determine the term obscenity

• In the case of “Aveek Sarkar v. State of West Bengal” it was held that the partial examination of an art cannot be sufficient to ascertain the obscenity instead the entire work has to be taken into consideration the apex Court held the view that merely because a photograph is nude and forms the part of a work then the entire work cannot be declared as obscene.

Laws across various Indian cities for displaying PDA

• Mumbai- Charges can be filed against a couple under Section 110 of the Bombay police Act 1951 if they are found being intimate in the public places.
• Delhi- If a couple is caught being intimate or being cozying at the public places, then they are charged with a fine amounting to Rs.50, however, it is rarely executed, and the police take undue advantage of the same by asking for bribes.
• Kolkata- The law in Kolkata says that if a couple is found indulging in any activity that involves sexual connotation then they can be sued for committing an offense under the indecent and Obscenity Act.
• Chennai- Chennai couples do not have that freedom as that of the couples of other metropolitan cities, but in recent times there has been certain liberalization and now seeing couples holding hands is common.

What to do if a group of people troubles you for showing your affection in Public?

As we live in a Country which is famous in the world for its distinct feature of “Unity in Diversity”, in the same manner there are different  ideologies and preconceived notions of various communities about various aspects, in the same manner we can see that the Act of displaying your love towards your partner in a public place may not be acceptable for certain communities and they may consider it as something which violates their moral principles, however there are instances when such restrictions becomes unreasonable and the restrictive authorities are misused by the police officers for the sake of their own personal Interest in which they succeed by taking bribes and heavy fines from the couples.

Under such circumstances, the Couple can opt for exercising their “Right to Privacy” which also includes the Constitutional mandate of “Personal Liberty” in it. If the Act of kissing involves the consent of both the partners and they are Major then they are not subjected to any moral Laws of various communities.

Case laws for obscenity-

Bobby Art international & Ors.v. Om Pal Singh Hoon,[7]

This case brought about a dynamic shift in ascertaining the factor obscenity, it this case it was held that if a piece of art involves nudity then the entire work has to be taken into account and it has to be established that it will be an influencing factor for the people and they might get affected by this.

Regina v. Hicklin

This case brought out a test for determining obscenity,the Court held that the content tends to influence and deprive the mind of others has is obscene regardless of its artistic aspect.

Kerala Teens Hugging Case

In the recent judgement, the Kerala High Court took an initiative and its verdict it granted some more powers to the schools for moral policing of the behavior of the adolescent students. A teenager approached the KSCPC(i.E), Kerala State Commission for Protection of child which instructed the school for allowing him to continue to his studies.The school appealed to the High Court and the Court supported the Act of suspending the Students.

Conclusion

Public Display of affection is something which may range from a mild handshake to a compassionate kissing, the essential element of the public annoyance has to be established to bring an act within the purview of an obscene Act, which is punishable under Section 294 of the IPC.

[1] Justice Kt Thomas, “The Indian Penal Code”, 33rd Edition, Pg- 1430.

[2] Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 81(1965) 2 Cr LJ 8.

[3] AIR 1963, All 105.

[4] Vishnu S Warrier, “Kiss of love and  it’s legality”

[5] Criminal appeal 914/2010@SLP.

[6] SC, 2014 case.

[7] 1994,4 SCC 1.