The Purdah of Morality: Public Display of Affection and the Law

When Richard Gere had stooped over to kiss Shilpa Shetty on the cheek in an anti-AIDS event in New Delhi in 2008, little did he imagine that he would be slapped with arrest warrants on obscenity charges. In a country that likes its pizzas in 30 minutes, adores its Beatles and its Beiber (*sigh*), where Avatar is as huge as a My Name is Khan, where women and men are treated equally (well, almost) and which claims to be as “progressive” as its western counterparts, the fact that an anti-PDA (Public Display of Affection) Law even exists is a cause for raised eyebrows. Indeed, the larger chunk of my friends, who have been the victims of the moral censure of the police while sitting in a park with their partner or walking down the street holding hands and slapped fines for being “indecent”, don’t even know what law makes them “guilty” or how severe their “guilt” is. Have you ever wondered why policemen hardly ever catch older couples holding hands, or ones who look ostensibly married? The truth is that these youngsters are nabbed because they are soft targets, since they don’t want to risk a trip to the police station at any cost. The worst punishment to a young adult, far worse than facing jail, is having their parents know what they were up to. Progressive society we might be, but to most Indian parents education and romance are like oil and water; they can never mix.

So to answer the question I’ve heard the second-most number of times from friends since joining Law School (the first being “Will you do all my cases for free?”), yes, there is a law that can cover cases of PDA. However, the good news is that the law doesn’t talk about PDA explicitly, only about “obscene acts in public”. This, the police have used to cover both nude stalkers as well as persons hugging in public, and that’s an astounding range for any definition to carry.

Usually, when the legislature leaves any definition open-ended, the courts step in and interpret the law keeping a lot of factors like the intent of the legislature and the prevalent customs of the society in mind. However, this has not happened in the present case. There is about as much cases on the obscenity-law (section 294(a) of the Indian Penal Code[1]) as there are Eskimos in India. To figure out why is hardly rocket science. Red-faced youngsters all too willingly coughing up the fine for their prurient activities results in cases on PDA never reaching the courts where a better definition for what constitutes obscenity in a public place might be gathered.

Fortunately, the police a few years back made the cardinal mistake of harassing a married couple kissing each other. The couple alleged that the contents of the FIR was false and they were simply waiting at the spot for their lawyer, to get some paper work done for registration of their marriage. In this case, the court stayed further proceedings against them on primarily two grounds: (a) they were married (b) there were no witnesses to testify that they were annoyed by them. The court went on to say, “It is inconceivable how, even if one were to take what is stated in the FIR to be true, the expression of love by a young married couple, in the manner indicated in the FIR, would attract the offence of obscenity and trigger the coercive process of the law.” While this might sound like music to the ears of many, there are a few problems with this judgment: first, its stress on expression of love by a married couple. Two, the court’s reluctance to define the boundaries of obscenity. While this means married couples can definitely kiss in public, questions are left unanswered for unmarried couples.

However, that the country’s highest judiciary is not blind to the “times, they are a-changin’”, is evident even in the case of Richard Gere, where the Supreme Court criticized the complainant for leveling charges against Gere, and said depreciatively, “Such complaints are publicity hunting. You are bringing a bad name to this country.”

The trouble with obscenity is that what is obscene today, may not be obscene tomorrow, and hence, its definition must be constantly accommodated to suit the needs of the times. In US and Canada, two tests have significantly laid the criteria for objectifying this definition: the community standards test and the harm test. The first test relies on the assumption that a community standard of obscenity exists and that the judges are capable of determining this standard. However, scholars have pointed out that not only might demographic and ethnographic differences within a society render a common standard unachievable (and this should especially be true for a country of contrasts like India), the judiciary may also be biased in their perceptions of community standards. Also a community standard might be regressive and oppressive. For instance, even if the majority view in Taliban’s Afghanistan was against women going to work, very few elsewhere would accept that reason by itself holds much ground. The harm principle adopted by Canadian courts seems to be a better measuring scale. In Regina v. Butler, the Canadian Court expressly rejected the claim that the state may “impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community” and instead focused on the “harm” caused by such acts to society, for instance, pornography resulting in the physical mistreatment of women by men. By the harm principle however, the case for criminalizing public displays of affection between consenting adults is reduced to dust.

Having argued for the need for a clearer definition of obscenity, I concede that the case for adopting either of the tests given above is not without its own set of criticisms, and as Potter Stewart said in Jacobellis v Ohio, might be “trying to define what may be undefinable.” That being the case, the draconian stance of the law enforcers criminalizing PDA to attain rent-seeking objectives is untenable. A re-look by the legislators amending the Victorian provision is in order, keeping in mind how much the world has changed in the 21^st century.