This article is written by Nipasha Mahanta, a student of NUJS, Kolkata.

Movies are reflective of what the contemporaneous society approves of and what it does not. 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 slight tilt towards each other; all symbolic of that what might have happened. It is demonstration of something which has happened but cannot be publicly shown. This automatically brings to 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, 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 of 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. A tricky rule negotiation for most Indian kids, given that they have never seen their parents even as much hold hands. Again, context matters meaning that a goodbye kiss at the airport is okay, smooching in a restaurant isn’t.”[1] 

Two years prior, an over-eager Richard Gere had the mob demonstration perused to him when he swooped down and caught performing artist Shilpa Shetty and planted a few kisses on her. The two, incidentally, were at an occasion to enlighten lorry drivers regarding safe sex. News TV hyperventilated, serving up titillation and snitch in equivalent measure on the serial-kissing Hollywood on-screen character. A few dissenters smoldered 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, I recollect the general population shock after Nelson Mandela kissed on-screen character Shabana Azmi when he came going to. 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.

Moral Policing and Public Display of Affection

The essential issue with good policing is that in the clothing of profound quality, society and custom, a few religious pioneers and political outfits have a tendency to separation the general public, and have a tendency to endeavor the hobbies of the minority groups, so as to assemble a few votes or to pick up exposure or for sundry advantages. Nor is it increase 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. Eventually back, the genuine face of Kochi Police was uncovered when the policemen were discovered halting the young fellows and ladies who were voyaging together on bikes and afterward extorting them of illuminating the folks of the young ladies about their demonstration, resultantly, urging cash from the overall population.. The spots for the hanging out of the youths have shockingly turned into the target spots for police to downy couples for the sake of ethical quality and to coerce them for cash. Lottery ticket dealers and homeless people, obviously, pay the part of sources for the cops. In a few places, the degree of this degenerate practice expanded so much that it got to be obvious, subsequently welcoming senior police authorities to issue orders to police staff to quit misusing the couples from open places for the sake of profound quality.

Moreover, what is hazardous is not that the endeavors are made to uphold Indian ethical quality and Indian society and conventional and moral qualities, however the issue is in choosing that 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 watched that “Thoughts of social profound quality are characteristically subjective and the criminal law can’t be utilized as an intends to unduly meddle with the area of individual independence” . Plato once spread the conviction that the men structure social orders to empower the individuals from the general public, to appreciate sensible flexibility and to benefit a chance to understand their best selves”. “Every single individual fragmented in themselves look for their appointment of satisfaction and predetermination in the improving human organization and majority rules system gives the wealthiest and the most significant chances of that shared enhancement.” Democracy is a great deal all the more about simply spreading the thought of majoritarianism. India, a pluralist has until now been fruitful in showing the world the lesson of resistance by offering sanctuary to the mistreated and displaced people of all religions and all countries. Be that as it may, the biased, moderate and above all the entrepreneurial individuals, the specialists of good policing have a tendency to force their own meaning of ethical quality. It stifles advancement and assorted qualities and in this manner it is a risk to majority rule government over the long haul.

The dread of moral policing is created in the whole nation has been defrauded by this idea either specifically or in a roundabout way. In a propelled city like Mumbai, it was opined by police, who go about as manikins of the coordinators of the ethical policing movement, that it is indecent regardless of the possibility that an individual, no wedded whether wedded or not is holding hands with a lady openly.

Moral policing agents object to the idea of men and woman traveling together at night, in today’s MNC’s culture. In July 2013, a couple at a beach, had to face arrest from 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 a 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 the period, they also attacked cinemas, video parlours, beauty parlours and wine shops. Recently in the garb of moral policing, VHP has threatened the 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.

Did Indians in the past kiss?

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. And in Kama Sutra, the definitive epic of amour, the scholar Vatsayana devotes a chapter on the art of kissing. He painstakingly details some 30 types of kisses – straight, bent, turned, press, nominal and throbbing are some among them. Ironical enough, Atish Patel of The Wall Street Journal has pointed out, anthropological evidence suggests India may have been the real birthplace of the potentially misnamed French kiss.

What is the law 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 bought 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 great amount of veracity when in Zafar Ahmad Khan vs The State, 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. Where 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’s 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. A FIR merely alleging the utterance of obscene words without mentioning the objectionable words is liable to be quashed, being vague.

A conviction under this section for uttering an obscene abuse in a  public place may amount to a conviction for an offense involving a  breach of the peace within the meaning of section 106, Criminal  Procedure Code, 1898 (same section of the 1973 code). 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 which 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 the wise.

However, the three words of this provision which 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 fins all of which get accrued to their own interest.

How to dodge the stroke of this unsettled law if it tilts against you?

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 under this section:
i) It should cause annoyance to the other (sufficient evidence in form of witness from passer by must be taken)
ii)  The act itself should be obscene in nature.
iii) The act must have been done in a public place.

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 depended upon to demonstrate that kissing out in the open is not an offense. The subjectivity of the expression “profane” is a central point. Consequently, it relies on upon the way of the demonstration charged whether one can be held subject and one can’t pronounce kissing out in the open an offense by all appearances. Additionally, vulgarity is characterized 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.

What is ‘obscene’?

Impending the subject of what are contemporary community standards, the guidelines will profoundly differ starting with one zone then onto the next and relies on upon the connection of the encompassing and the normal individual living in the region. While, it may not be viewed as illicit in upscale elegant zones in the metros, it still may be viewed as unlawful as not consenting to the group norms in a town.

  • 294 of the IPC unmistakably expresses that any demonstration done by anybody in an open spot and to the disturbance of others is an indecent demonstration. Notwithstanding, the law does not characterize the term ‘obscene’. It is along these lines, pass that the meaning of the expression “indecent” must be judged by the current legal use of the term as ideas encompassing the expression “obscene” are always under change as an outcome of a general public that is constantly changing and under steady impact of advanced thought which prompts novel norms of ethical quality and thought at distinctive purposes of time in the public arena. A little marker of what the administrators may have implied when utilizing the expression “obscene” can be seen as §292, which is thought to be the general law of vulgarity, obviously expresses that any material should be esteemed to be obscene,“if it is lascivious or appeals to the pruri­ent interest such as to tend to deprave and corrupt person, who are likely to come across such works”. However, an argument does exist that despite §292, the definition of the term ‘obscene’ remains vague and unclear and dependent on the morality of society which exists at the time of consideration[2]. In dealing with this argument, in the Udeshi case, the Supreme Court said, “The word obscenity is really not vague because it is a word which is well understood even if persons differ in their attitudes to what is obscenity and what is not”. The court, however, did lay down some qualifying factors which may aid in determining an act to be obscene or not.

 (1) That which depraves and corrupts those whose minds are open to such immoral influences.

 (2) That which suggests thoughts of a most impure and libidinous character.

(3) That which is hard-core pornography.

(4) That which has a substantial tendency to corrupt by arousing lustful desires.

 (5) That which tends to arouse sexually impure thoughts.

(6) That which passes the permissive limits judged of from our community standards.

Further, in Kakodkar v. State of Maharashtra[3] the Supreme Court again had occasion to deal with the concept of obscenity. While the Court seemed to follow Udeshi case , in effect the Court in Kakodkar expanded the freedom of writers by going beyond the Udeshi doctrine. In the Udeshi case, the court said that separated from considering the fill in general in judging whether the parts being referred to are really profane or not, it is likewise essential for those parts to be considered independently and without anyone else’s input free of the connection secured by the work itself. In doing as such, 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 v. Hicklin[4]. 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 v. State of West Bengal[5], 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 §292 of the Indian Penal Code. The Supreme Court has based its judgment 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[6] judgment. 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[7] and Miller v. California[8] 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 States 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. By introducing the ‘community standards’ test, the court has paved the way for cases like the Bobby International case[9] 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 that the court in cases like A and B vs State Thr NCT of Delhi[10], 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 Right to Freedom of Speech and Expression as guaranteed by Article 19(1)(a) of the Constitution of India.

Kissing qualifies as ‘obscene act’.

An offence of obscenity as given under Sections 292[11] and 294[12] of the Indian Penal Code has been committed by the people who engage in acts qualifying as public display of affection as they were obscene and unnecessary as regards the social message that the protest aimed to send. An offence under §294[13] can be made out against the people who engage in kissing each other in a public place even if it is done with the motive of protesting against moral policing. The fact that the act took place in the context of a protest is not enough to exonerate the appellants of all claims and when the acts seek to annoy others, the same can be called obscene. The protection of Article 19[14] of the Constitution cannot be afforded to the people who engage in such activities as the freedom of speech and expression must be exercised under reasonable restrictions and the above-mentioned acts were violative of the reasonable restrictions placed on them by law.

The right to Freedom of Speech and Expression guaranteed by Article 19(1)(a) cannot be said to be violated. It is humbly contended that the right must be subjected to reasonable restrictions and Article 19(2) allows the state to make new laws or enforce existing ones in maintaining the reasonable restrictions placed on freedoms guaranteed under Art 19. The first amendment to the Constitution introduced the word “reasonable” before restrictions, which laid down the following qualifications for a restriction to be deemed reasonable:

  1. The restriction must be for the specific purpose specified in that very clause, which would justify the imposition of that restriction on that particular right
  2. The restriction must be reasonable

In the case State of Madras v VG Row,[15] the court opined that the reasonable restrictions may vary from right to right depending on the restriction being imposed and the object behind such an imposition.The case laid down various factors which could be taken into a/c while determining the reasonability and includes

  1. The underlying purpose of the restrictions imposed
  2. The extent and urgency of evils sought to be remedied thereby.
  3. The disproportion of imposition, prevailing conditions at that time and duration of the restrictions.

The kind of restrictions are not defined. As opined by the court in the B.P Sharma case, the main purpose of restricting the exercise of the right is to strike a balance between individual freedom and social control. The freedom as guaranteed under Article 19(1)(a) is valuable and cannot be violated on grounds which are not established to be in public interest or just on the basis that it is permissible to do so. For placing a complete prohibition on any professional activity there must exist some strong reason for the same with a view to attain some legitimate object and in case of non-imposition of such prohibition, it may result in jeopardizing or seriously affecting the interest of the people in general. If it is not so, it would not be a reasonable restriction if placed on exercise of the right guaranteed under Article 19(1)(g). The phrase ”in the interest of the general public” has come to be considered in several decisions and it has been held that it would comprise within its ambit interests like public health and morals,[16] economic stability On consideration of a catena of decisions on the point, this Court, in a case reported in ‘IMF Ltd. v. Inspector, Kerala Government  (1998)8 SCC 227 has laid certain tests on the basis of which reasonableness of the restriction imposed on exercise of the right guaranteed under Article 19(1)(g) can be tested. Speaking for the Court, Saghir Ahmad (as he then was), laid down such considerations as follows:

(1) While considering the reasonableness of the restrictions, the court has to keep in mind the directive principles of State policy.

(2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of general public.

(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to the changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.

(4) A just balance has to be struck between the restrictions imposed and the social control envisaged by Clause (6) of Article 19.

(5) Prevailing social values as also social needs which are intended to be satisfied by restrictions have to be borne in mind.[17]

(6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of constitutionality of the Act will naturally arise.

The right to freedom of speech and expression of the people engaged in Public display of affection can be restricted on grounds of decency under Article 19(2) of the Constitution on grounds of decency. Though all citizens of India have been granted the right of freedom and expression in Part III of the Constitution, yet this right is not an absolute right. The State can from, time to time place reasonable restrictions on this freedom of individuals based on grounds mentioned in Articles 19(2)[18] to 19(6) of the Constitution. The question whether an utterance is likely to undermine decency or not is to be determined with reference to the probable effects it may have on the audience that it is addressed to.[19]The age, culture[20] and like of the audience thus become a material question.[21] Decency indicates that the action must be in conformity with the current standard of behavior or propriety.  §292 of the Indian Penal Code seeks no more than to promote public decency and morality. Decency means absence of indecency. Decency is wider term than obscenity. What might be indecent might not be obscene[22], that is to say, without having any tendency to arouse sexual passion, but at the same time offending against recognized standards of propriety. The test of obscenity is whether publication, read as a whole,[23] has the tendency to deprave and corrupt those whose minds are open to such immoral influence. It must be judged in its entirety from the point of view of its overall impact. In the case of Bobby Art International v. Om Pal Singh Hoon,[24] the court observed the fact that the context and object behind the nudity and other objectionable scenes in the film Bandit Queen were important considerations in determining whether those scenes were obscene or not. The Court realized that the object behind showing the stripping and naked parading of Phoolan Devi was to arouse pity and disgust in the minds of the viewers and not sexual arousal. The Supreme Court’s decision in the recent case of Aveek Sarkar v. State of West Bengal[25] involving the issue of a controversial semi-nude picture of Boris Becker and his fiancée in a Sports Magazine imports a similar reasoning. The Court in this case observed that the context of the picture and the message behind it, to protest against apartheid in this case, was a relevant consideration in deciding whether the picture was obscene or not. The Supreme Court hence maintains that the act must not be looked at in isolation instead the context must be understood. Kissing is an obscene act in itself as it tends to cause annoyance to persons in public places and because the society in India even today is not ready for such lewd display of affection in public.

Kissing does not qualify as ‘obscene act’.

While it is concurred that kissing for adoring sympathy is permitted as the Indian legal at the larger amounts has not all around regarded kissing out in the open as illicit. In suitable connection, spelt out differently by the significant judgments, it has been seen as a statement of affection, representation of adoration and empathy, and its aesthetic representation as solid. Missing in every one of these cases is the propensity to assume that each kiss is a demonstration of sexual outflow and that enjoying this demonstration out in the open is constantly profane.

  • 294(a) of the Indian Penal Code states that “Whoever, to the annoyance of others, does any obscene act in any public place shall be punished.” This provision defines the term obscenity in terms of its potential to cause public annoyance. However, there is no precise interpretation and scope of the word ‘annoyance’ that has been given by the Courts. Resultantly, the ambiguity about the term obscene reduces itself to the ambiguity about the term annoyance. Annoyance, however, may not be the sole criteria to judge the obscenity of the act. In these circumstances, the question takes the form that whether in general, a particular act has the tendency to “deprave and corrupt” people by arousing lustful desires or by invoking in them the sexually impure thoughts.”[26] The term can be comprehended better when interpreted in consonance with Section 292 of IPC, whereby the judgment of the term being obscene depends upon the interpretation of the act as a “whole” and not in isolation. Section 292 explicitly warns the judiciary to decide the obscenity of any act with “regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.[27]” Additionally, it is required of the judiciary to give due recognition or acknowledgment to the difference between the terms like vulgarity and obscenity as one set of pairs; and indecency and obscenity as the other set.[28] Oblivion cannot be shown towards the difference because obscenity is an extreme as and therefore an intolerable form of indecency or vulgarity.

It is suspected that the administrators have purposely left the term vulgarity in a coliseum of perplexity or uncertainty. Something which is not reason can’t be law, and the justification behind leaving the term foul totally open for understanding by the court is that profanity is a very subjective term and it is unsafe to judge it in separation. It is the expectation of the legislators to endow the judges with the instrument of adaptability while deciphering the word so that people in general request and profound quality is defended on one hand, and the flexibility of a person then again likewise does not stay unprotected. The fundamental guideline of understanding, as per which if on the reason translation of a questionable term, if on the sane elucidation of an uncertain term, more than one conceivable sensible developments emerge, then, court must be permissive and ought to embrace the liberal importance through which the punishment can be maintained a strategic distance from.[29]

Conclusion

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 advantageous to totally smear this line, and consequently characterize 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, or 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; obscenity 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 member 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 depravation 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 sensible individual.

[1]

[2] Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.

[3]Shri Chandrakant Kalyandas Kakodkar v. State of Maharashtra, AIR 1970 SC 1390

[4] Regina v. Hicklin, L.R. 2 Q.B. 360 (1868).

[5] Aveek Sarkar And Anr v. State Of West Bengal And Ors., (2014) 4 SCC 257.

[6] Roth v United States , 354 U.S. 476 (1957).

[7] Memoirs v. Massachusetts,  383 U.S. 413 (1966).

[8] Miller v. California, 413 U.S. 15 (1973).

[9] Bobby Art International & Ors. v. Om Pal Singh Hoon,(1996) 4 SCC 1

[10] A and B v. State Thr NCT of Delhi,

[11] §292, Indian Penal Code, 1860- Sale, etc., of obscene books, etc.-(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the pruri­ent interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

[12] §294, Indian Penal Code, 1860- Obscene acts and songs—Whoever, to the annoyance of others—

(a) Does any obscene act in any public place, or

(b) Sings, recites or utters any obscene song, ballad or words, 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.

[13] Id.

[14] Article 19(1)(a) – Freedom of Speech and Expression, The Constitution of India, 1950.

[15] State of Madras v. V.G. Row, A.I.R. 1952 SC. 196.

[16] State of Maharashtra v. Himmatbhai Narbheram Rao (AIR 1970 SC 1157).

[17] State of U.P. v. Kaushailiya, A.l.R. 1964 S.C. 416.

[18] Article 19(2): “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 4 [the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” Constitution of India, 1950.

[19]RanjitUdeshi v. State of Maharashtra,  AIR 1965 SC 88 (885).

[20]Rajani v. State, AIR 1958 All 360.

[21] DD Basu, Commentary on the Constitution of India (7th edn. 1997), 802.

[22] Shankar v. State, AIR 1955 Mad 499.

[23]State v. Ramanand, AIR 1956 Pat 188 (195).

[24]Bobby Art International v. Om Pal Singh Hoon, AIR 1996 SC 1846.

[25]Aveek Sarkar v. State of West Bengal, supra n16.

[26] S K Sarvaria, Indian penal code (9th edn. 2003), 1143.

[27] “It is argued that Sub Section (1) of Section 292 is clear on the point that the definition of the word ‘obscene’ is given only for the purpose of Sub Section 2 of Section 292 IPC and so the definition of the word ‘obscene’ obtained in Section 292(1) cannot have any application when the same word is to be interpreted in the context in which it is used in Section 294 IPC. The learned single Judge has observed that there is nothing in Section 294 IPC to hold that the meaning given to the word ‘obscene’ in Section 292 is applicable to any other provision in IPC. It is true that it is not stated in Section 294 that the word ‘obscene’ used in that section carries the same meaning as defined in Section 292(1). It is argued that if the legislature intended that the word ‘obscene’ as explained in Section 292 (1) has the same meaning or application wherever that word ‘obscene’ occurs in other parts of IPC then it would not have been stated specifically that the said explanation or definition is applicable for the purpose of Sub Section 2 of Section 292. The argument is that the word ‘obscene’ occurring in Section 294 should have a different meaning than the meaning given to that word in Section 292. The expression ‘deemed to be obscene’ mentioned in Section 292(1) may tend to think that what is explained in Section 292(I) is not actually the definition of the word ‘obscene’ but a particular meaning is given to the word ‘obscene’ for the purpose of Section 292(2).”

[29] Tuck and Sons v. Preestor (1897) 19 QBD 629.

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