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Legal Implications of PDA

Background


Public Display of Affection (PDA) is now a run-of-the-mill phrase used by many today, however, still there exists a sense of uneasiness attached to the concept. This situation is unique to India and a few South-East Asian cultures but to a stark contrast, such displays have become almost a mundane part of many countries especially in the west. The big quandary around the subject matter arises due to a lack of an exact definition or guidelines for the same which is holds true for all jurisdictions as the countries that do not consider PDA as an offence don’t feel the need to make legislation around and countries like India are rather discombobulated around the concept and often force it into a broader definition of public nuisance. Due to the aforementioned gross mismanagement of matter of PDA, there are still ambiguities and inconsistencies upon the present law which I hope to demystify going ahead into this piece.

Current Standing Under Law


At present PDA per se doesn’t find a place in the Indian Penal Code[1] but most cases relating to the subject are brought under Section 294[2] which deals with obscene acts and songs causing annoyance to others. Tracing back to the original intention of the section and even the contemporary comments upon it we see its main cynosure has been upon encompassing the offense called ‘eve-teasing’ in common parlance. Further, in the absence of any specific law dealing with eve-teasing and taking note of the fact that provisions of the Protection of Women from Sexual Harassment at Workplace Act are not adequate to curb eve-teasing, the Supreme Court even issued a number of direction under the section only relating to eve teaching in the case of Deputy Inspector General of Police v. S Samuthiram[3].

A major point of contention that has caught a lot of attention is that in order to secure a conviction under Section 294[4] the prosecution has to prove two indispensable particulars, namely:

i) The accused has done an obscene act in any public place

ii) Has so caused annoyance to other

Test of Obscenity


While dealing with the former specifically to determine an act as obscene due to lack of a proper definition for the same under the Penal Code. Thus, often in the process of classifying an act as obscene the prosecution relies upon the test of obscenity developed under Section 292[5] which refers to publication and/or art work. The test of obscenity in India can clearly be traced back to the British Statute Criminalising obscenity laid down by Chief Justice Cockburn in the R v. Hicklin[6] case where obscenity was adjudicated upon 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[7]. However, over the years the test has gradually changed and evolved with a number of judicial pronouncements as in the case of Aveek Sarkar v. State of West Bengal[8], the Supreme Court has doubted the ‘Hicklin Test’ as a correct for determining ‘obscenity’ and argued that ‘contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons’ is the correct test. ‘Community standard test’ rather than ‘Hicklin Test’ to determine obscenity, it asserts, sounds more correct[9]. Therefore, The Supreme Court by striking down the Hicklin test and upholding the more adaptive Community Standards test has done an admirable job. If the society accepts the portrayal of sexual activities on the silver screen, the court must not strike it down for the sake of a few sensitive persons. If it is acceptable to the society in general, the court must accept it too. Materials may have sometimes had content which is not acceptable to the society, like frontal female nudity is not acceptable in India but it is acceptable in United States of America and United Kingdom. In such scenarios, one needs to look into the bigger picture, the message being conveyed through the otherwise obscene material. The message should be beneficial and helpful to the society. People should have the freedom to send a message to the society through images/films/paintings/writings which if seen in isolation would be considered obscene or lascivious.

Constitutional Law Angle


A rather voguish argument defending Public Displays of Affection is the invocation of Article 19(1)(a) protecting the freedom of speech and expression stating that such a display holds an integral part of an individual’s natural rights and thus specifically is protected under Part – III of the Constitution of India. Natheless it is imperative to understand that any and all rights under Part – III are qualified and never absolute specifically in the case of Article 19 which details all such limitations. The freedom of speech and expression as well as invites a number of restrictions given under Article 19(2) specifically the decency and morality clause are the most commonly adduced while attempting to prevent PDA.

While deliberating upon the application of the restrictions enshrined under Article 19(2) consideration must be given to a couple of rather important points of law. Firstly, the sections 292 – 296 of the Penal Code were simply void as it imposed an impermissible and obscure restriction upon the freedoms under clause 19(1)(a) and second, the general doctrine in criminal law, actus non facit reum nisi mens sit rea, the rule was that the actus to be reus, the mens with which it was done had also to be rea. However, the apex court rejected such claims in the case of Ranjit D Udeshi v. State of Maharashtra[10] where the obscenity of the well-known book, Lady Chatterley's Lover was challenged.

Misuse of the Law


Another rather latent implication of a subject like Public Display of Affection is blatant dissipation of the prevailing law as it invites moral policing more so than true letter of the law being followed. Yet an important realisation needs to be made with regard to the desperate lack of awareness of rights and liberties amongst citizens, this coupled with a sharp fear of the police authorities and measured against the already existing uneasiness and even at times shameful nature of the theme leads to gross mismanagement of the matter.

Quite recently this common harassment by the police has been noticed by the authorities as Former Commissioner of Police for Mumbai Rakesh Maria and Joint CP Deven Bharati both issued statements for their officers not to misuse the law of the land and harass the citizens.

Conclusion


Despite a lot of attention and conscious being developed around the subject until a time the masses are rid of the taboo and hush-hush around the subject, the law shall simply not progress. At present the law around PDA superimposes the act into a section that had an entire different purpose at the drafting of the statute, another problem plaguing the matter further is that the law can directly be traced to the British statute criminalizing obscenity and taking into account the vast differences in cultures and understandings of decency in the countries India faced rather different challenges while enacting the law. To conclude, the clear need of the hour seems to stop the forced compartmentalization of PDA in the garb of obscenity and equate it with the crimes like eve-teasing, however, the same does seem pragmatic until a radical changed in mindset and awareness needs to be undertaken.

[1] The Indian Penal Code, 1860 [2] Id., Section 294 [3] AIR 2013 SC 14 [4] The Indian Penal Code, 1860, Section 294 [5] Id., Section 292 [6] [1868] 3 QB 360 [7] Ranjit D Udeshi v. State of Maharashtra AIR 1965 SC 881 [8] (2014) 4 SCC 257 [9] Id., para 24 [10] AIR 1965 SC 881

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