Colonial Legitimization Of Moral Policing In India

Gyandeep Kaushal, National University of Study and Research in Law, Ranchi “Obscenity is a moral...

Gyandeep Kaushal, National University of Study and Research in Law, Ranchi
“Obscenity is a moral concept in the verbal arsenal of the establishment, which abuses the term by applying it, not to expressions of its own morality but to those of another.” Herbert Marcuse

Section 294 of the Indian Penal Code

The blanket term ‘moral policing’ has remained a buzzword amid the media and the right-minded unobstructed citizen. Be it the prosecution of the ‘Kiss of Love’ campaigners[1], the act of raiding flats[2] and lodges[3] or slapping couples in public park[4], the highhandedness of the police in regulating public conduct of individuals has for long been under the radar. Section 294 of the Indian Penal Code is the most frequently referred provision. It runs as follows:

Obscene acts and songs – Whoever, to the annoyance of others, does any obscene act in any public place, or 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.

Following are its essential ingredients:

Act Done in Public Place

IPC does not define ‘public place’. Therefore, the meaning of public place needs to be taken as understood in common parlance. For purposes of reference[5]&[6]generic definitions of ‘public place’ may be looked up to. But these definitions cannot be attributed to an offence under Section 294 of the IPC.[7]

The Court observed that public must have free access to a place to call it a public place. The place where public have no lawful right to enter cannot be said to be a public place for invoking the penal provisions of section 294, IPC.[8]

In Temiko[9], the Bombay High Court found that an enclosed area in a posh hotel where cabaret is conducted and entry is limited to persons who purchase tickets is not a public place. However, in Narendra Khurana v. Commissioner of Police[10]overruling Temiko, Justice Kakade found that such an area cannot be said to be a private place merely because entry is restricted to persons purchasing the highly priced tickets and costly food and drinks are served.

The Act is Obscene

In Dhanisha[11]Justice Balakrishnan found that ‘obscenity’ used in section 294, IPC doesn’t have a different meaning than in sections 292 and 293, IPC. Thus, being a continuation of the subject dealt with under Section 292, IPC, and the definition of obscenity under 292(1), IPC can be applied in a prosecution under Section 294 IPC also.[12]

The Hicklin Test

The test as established in the case of Regina v. Hicklin[13]:

The test of obscenity is, whether the tendency of the matter charges as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.

Hicklin was first approved in RanjithUdeshi v. State of Maharashtra[14]where the Court upheld the obscenity charges of D. H. Lawrence’s novel ‘Lady Chatterley’s Lover’. The dictum of Hicklin was followed by the Apex Court in Samresh Bose v. Amal Mitra[15] wherein using Hicklin, the Court differentiated between vulgarity and obscenity as also in George v. State of Kerala[16]. The Apex Court went as far as mentioning that it is the only test in India to adjudge whether any material is obscene[17].In another judgment[18]it observed that the test has been generally applied in this country and should not be discarded.

The Community Standard Test

Coined in Roth v. United States[19] the test is also called the Roth Test. The test is if on the application of community standards of the contemporary society, a work ‘tends to corrupt by arousing lustful desires’, it is obscene. The Supreme Court explicitly discarded Hicklin recently in Aveek Sarkar v. State of West-Bengal[20]where Radhakrishnan, J. vouched for this test. In Ajay Goswamiv. UOI[21], Hicklin was held as somewhat outdated.

The Miller Test

In Ajay Goswami[22], the Apex Court noted briefly what is now called the Miller Test. Superseding Roth in Marvin Miller v. State of California[23], the test is:

whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest[24], whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Moving beyond ‘community standards test’, the US Supreme Court in Miller stated that the application and ascertainment of ‘contemporary community standards’ would be the task of the Jury as they best represent it[25].

Comparable Test

Mr. Subramanium[26] pointed out that in American Jurisprudence, the argument of “comparables” has gained considerable force. The test is that the trier of fact may rely on the widespread availability of comparable materials to indicate that the materials are accepted by the community and hence, not obscene under the Miller test.[27]

Annoyance to Others

An act per se indecent and obscene, would not warrant prosecution under Section 294 IPC in the absence of express evidence of annoyance by any person.[28]

  1. 294,IPC must be read with S. 87 and 88 of the Code.[29]InTemiko[30], Justice Vaidya found:

“Any customer who goes to a hotel where cabaret show is run has impliedly given his consent to take the risk of being annoyed by the obscene sounds and dances which the cabaret performer may give. The maxim volentinon fit injuria must apply to the annoyance, if any.”

Reliance was placed on the unreported judgment by Justice Rege[31]who held that the Court will have to find out from evidence whether any person was actually annoyed.”

The Single Judge in Narendra Khurana[32] opined that if the performances are likely to annoy persons holding good moral character, Section 294 would be attracted. But Justice Kakade found that the theory of ‘obscenity per se’ cannot be made applicable to Section 294.

Suppose A and B, are engaged in an obscene activity. They are inside a car, parked in an open area which is far from a National Highway. Although the public has free access to the place, the place is not easily visible from the Highway. Can the act of the couple deemed to be obscene?

The issues in the example are:

Whether a complainant can be said to have been caused the mental harm of annoyance?

Whether the area in which the couple is parked can be deemed to be a public place within Section 294,IPC?

The couple is doing nothing actively to cause annoyance to anyone as they are simply not parked at a place which is easily visible to someone driving on the Highway. But what if X, a rider pulls over his car on the highway and takes out a pair of binoculars to be able to appreciate the scenic beauty of the place and in that course, happens to notice the car belonging to the couple. Then, he zooms to see what the couple in the car is engaged in. Will he be termed to have been caused ‘annoyance’? In the latter case, it was X who deliberately zoomed in, although without hoping to note the couple which was engaged in an otherwise obscene activity. Will the element of intention of the couple and that of Mr. X play a part in deciding whether X was caused annoyance?

Also, assuming arguendo that the place where the couple is parked is accessible to the general public, whether it can be deemed to be a public place? In a situation where Mr. X above notices the said car through his binoculars and out of curiosity goes off road and towards the car, whether the couple inside the car be deemed to have performed an obscene act at a public place within the meaning of Section 294 of the Indian Penal Code as the couple never intended or hoped Mr. X to visit the place and rather had taken enough precautions to that end.

The lacuna in Section 294, I.P.C is the lack of precise and clearly outlined definitions of vague terms like ‘public place’ and ‘obscene’. Also, what is the meaning of ‘exposes his person’ in laws like Section 110, Bombay Police Act[33] and Section 91, Delhi Police Act (which has a similar language) is unclear. Whether an individual urinating publicly by the roadside be covered under ‘exposes his person’ within these laws?

These laws on obscenity or for that matter ‘indecency’ either need a fresh amendment or support from a ‘Definitions’ clause in the legislation, without which they are amply designed to cause needless trouble to the ordinary citizen who did not know he was going to hurt the ‘moral code’ of the police, although not doing anything illegal.

Photos: PixaBay

[1]Hyderabad: ‘Kiss of Love’ supporters face case for obscenity (Nov 5, 2014, 06:58 PM),

[2]Obscene acts in private place not an offence: Bombay HC (March 21, 2016, 11:58 am),

[3]18 held for obscenity after raid on Panchgani lodge (Aug 28, 2012, 01.53 AM)

[4]Local police officer slaps couples in public park for indulging into Public Display of Affection (Aug 14, 2013, 14:33 PM),

[5]Section 2 (34) of the Motor Vehicles Act, 1988 – “public place” means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage.”

[6] Section 4 of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003: ‘public place’ as ‘any place to which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway waiting room, amusement centers, restaurants, public offices, court buildings, educational institutions, libraries, public conveyances and the like which are visited by general public but does not include any open space.

[7]Deepa and Ors v. S.I. of Police and Anr., 1986 Cri.L.J. 1120.

[8]Amardeep Singh Chudha and Ors. v. The State of Maharashtra and Ors,2016 (2) BomCR (Cri) 476.

[9]State of Maharashtra v. Miss Joyce,I.L.R. (1976) Bom 1299, ¶ 23.

[10] 2004 CriLJ 3393.

[11]Dhanisha v. Rakhi N. Raj. &Anr., 2012 (2) CriLJ 3225.

[12]Latheef v. State of Kerala, 2014 (2) K.L.T. 987, ¶ 5.

[13] L.R. 2 Q.B. 360 (1868)

[14] A.I.R. 1965 S.C. 881.

[15]1986 Cr.L.J. 24.

[16]1968 K.L.T. 219.

[17]Director General, Directorate of Doordarshan&Ors. v. AnandPatwardhan&Anr A.I.R. 2006 S.C. 3346.

[18]Shri ChandrakantKalyandasKakodhar v. The State of Maharashtra and Ors., A.I.R. 1970 S.C. 1390, ¶ 5.

[19] 14 Ohio Op. 2d 331.

[20]A.I.R. 2014 S.C. 1495, ¶ 14.

[21] AIR 2007 SC 493, ¶ 36.

[22]¶ 33.

[23]413 US 15 (1973)¶ 17.

[24]Kois v. Wisconsin, 92 S. Ct., at 2246

[25]Devidas Ramachandra Tuljapurkar v. State of Maharashtra and Ors., A.I.R. 2015 S.C. 2612, ¶ 22.

[26]Devidas Ramachandra Tuljapurkar v. State of Maharashtra and Ors,A.I.R. 2015 S.C. 2612, ¶ 26.


[28]Crl.A.No. 2973 of 2002 dated 18-12-2003. See also, Pawan Kumar v. State of Haryana and Another, A.I.R. 1996 S.C. 3300.

[29]Sadhna v. State, (1981) 83 P.L.R. 70.

[30]The State of Maharashtra v. Joyce Zee alias Temiko,(1975) 77 Bom. L.R. 218.

[31]Criminal Appeal No. 1541 of 1971

[32]Narendra Khurana v. Commissioner of Police,2004 Cri.L.J. 3393, ¶ 26.

[33] Section 110 of the Bombay Police Act, 1951, the law most sought after by the Bombay Police in prosecuting couples puckering up inside their cars and people exchanging intimacies in parks, provides in the following terms:

No person shall willfully and indecently expose his person in any street or public place or within sight of and in such manner as to be seen from, any street or public place, whether from within any house or building …