Above: Illustration by Anthony Lawrence

The most literate state in the country is once again embroiled in a row over its conservative stance. This time, the victims were two students of a school who shared an affectionate moment  

~By Lilly Paul

In times of happiness or despair, a welcoming hug can work wonders. But for two school students in Thiruvananthapuram, this gesture resulted in quite an ordeal. On July 21, Rohith (name changed), a student of Class XII, hugged his friend, Meera, of Class XI, after her stellar performance in a Western Singing competition at an Arts Festival. Both were studying in St Thomas Central School.

However, the hug did not go down well with a teacher who saw it. They were taken to the vice-principal, where they were made to tender an apology along with a warning not to “indulge in such activities” in future.

Rohith’s class teacher, however, did not consider this enough of a “punishment”. On July 24, the parents of the boy were summoned to the school by Rajan Verghese, secretary of the Mar Thoma Educational Society, the trust which runs the school. The parents said the school authorities insulted, or rather “abused” the boy, calling him a “heated bull”. The parents were again summoned on August 11, when the school was ready with some Instagram photos of the two students that were posted on Rohith’s private account. The school, which found the photos “obscene”, handed over an expulsion letter to both students as they could bring a bad name to the institution.

Former education minister of Kerala MA Baby called the management’s action an “irrational step” after “an innocent expression of friendship by the boy and girl in the campus”. He said the students should have been counselled. “It was a disproportionate disciplinary action taken by the management. These adolescent boys and girls should be given proper counselling and be helped to understand things,” he said.

The school management has come in for criticism over its action. Shashi Tharoor, Thiruvanantha-puram’s MP, called it “puritanical patriarchy running rampant” and has spoken to the school authorities personally. The school finally said it would look into the matter and has called the parents of the boy on January 3 for discussions. However, it has not cleared the air regarding the girl’s future as she has not been called for the meeting. The management has maintained from the beginning that she is not a student of the school as she had not submitted her fees and documents.

Prof KN Panikkar, chairman of the Kerala Council for Historical Research, told India Legal that there was an unnecessary gender divide in the school. “The school’s action is unjustifiable. The normal human behaviour of greeting one another is not to be interpreted always in other terms. This incident does not and should not have attracted such punishment,” he said. “Normal behaviour should enable boys and girls to see each other as human beings. Instead of that, an atmosphere is created where they look at each other differently. What is needed is an open society.”

Some former students of Mar Thoma Educational Society too have come together to file an online petition against the school’s decision. Preethi Krishnan, a PhD student of sociology in Purdue University, US, along with her friends filed an online petition on change.org. She told India Legal that this incident had made her worry about “private schools and colleges taking up moral policing in campuses rather than encouraging open conversations about gender, sexuality and consent”. The alumni said the management’s step was “anachronistic in our times”.

The baffled parents then approached the Kerala State Commission for Protection of Child Rights, which passed an interim order that the students be taken back. But an adamant management moved court, where on December 12, the single-judge bench of Justice Shaji P Chaly quashed the interim order. The Kerala High Court’s order said that the powers conferred upon the Commission are “only recommendatory in nature”. It went on to say that the principal of the school was “vested with powers to take necessary action to maintain the discipline and morality in the school, which cannot be interfered or tinkered with” by the Commission. It referred to the hugging incident as “unfortunate” and “substantially affecting the discipline and morale of the school” and justified the action taken against the students. However, it said the school authorities could reconsider the issue, bearing in mind that the boy is to appear for board exams in the coming year.

Speaking to India Legal, an official of the National Commission for Protection of Child Rights said on condition of anonymity that the panel has “all the powers to deal with the inquiry and had the right to pass the interim order”. He added that accessing Instagram photos of the boy was a “violation of the child’s right to privacy”.

In fact, Section 14 of the Commission for Protection of Child Rights Act, 2005, says: “The Commission shall, while inquiring into any matter referred to in clause (j) of sub-section (1) of section 13 have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908).” Further, Section 94 entitles it to carry on with supplemental proceedings, and in order to prevent the ends of justice from being defeated, the Court may pass an interim order. However, as the matter was sub judice, the Commission cannot take up the issue again or pass any order on it. So both students will either have to wait for the school management’s decision on January 3 or appeal to the Kerala High Court.

Kavita Krishnan, secretary of the All India Progressive Women’s Association, too said that Instagram photos of the students were a private matter. “It is not the school’s business to look into what the youngsters are doing in their private time,” said Krishnan.

This is not the first time that educational institutions in Kerala have cracked down on acts of affection or consensual relationships between students. Unfortunately, courts often take the side of the educational institution. On June 15, 2016, the Kerala High Court dismissed a petition filed by a 20-year-old female student of Mar Thoma College of Science and Technology, Chadayamangalam, who challenged her dismissal from college for living with her male friend. The couple was staying at a lodge in Thiruvananthapuram, from where they were apprehended by the police on a missing person complaint.

The student said in her petition that she can only be accused of “having fallen in love” with one of her college mates and cannot be expelled on that basis. Even then, the college management was “deeply concerned about the discipline” to be maintained in the educational institution, a concern shared by the Court also.

The verdict passed by Justice K Vinod Chandran said the incident was not a mere case of falling in love, but two students “taking the drastic step of eloping and living together without even contracting a marriage”. It also said that as adults, “they should also be ready to face the consequences”.

These cases highlight the moral and social dilemmas facing a state where, despite high literacy rates, conservatism rules the roost and public displays of affection are looked down upon. In February, Vishnu Vichu and his female friend were sitting in a park in Thiruvananthapuram when they were asked to come to the police station by two women constables who accused them of indulging in vulgar actions in public. The couple, instead of taking  this lying down, live streamed it on Facebook. The video garnered so much criticism that Loknath Behera, the police chief, had to write an apology and clarify that there was “no legal ban on Public Display of Affection”.

A reaction to this moral policing was the Kiss of Love protests in the state on November 2, 2014. The protests spread to other cities and saw young men and women locking lips in a sign of defiance. Even as some of them were arrested, they took their protest inside the police van and even the police station.

Krishnan explained that such moral policing is “a recipe for disaster. It is giving young people the completely wrong message. It is teaching them that any healthy interaction between the sexes is something to be ashamed of”. She added: “Kerala needs to look into itself because it prides itself on being a very progressive state but it could not get its head straight on Hadiya or the Kiss of Love protests. There is a lot of hypocrisy.”

Public display of affection (PDA) is not banned in the country, so moving around with partners or hugging them cannot land one in jail. However, as obscenity laws are not defined, one can be charged under Section 294 of the IPC for PDA. Section 294 states that, whoever, to the “annoyance of others” commits any obscene act in 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.

Even the Supreme Court in the Udeshi vs State of Maharashtra (1965) had mentioned: “The Penal Code does not define the word obscene and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by courts, and in the last resort by the Supreme Court.” However, it went on to explain how an individual’s constitutional right to express himself should not be hindered by the test of obscenity. “The test of obscenity must square with the freedom of speech and expression guaranteed under the Constitution.”

Panikkar has a point when he says that “if two people decide that they want to greet each other by physical contact which is a universal act all over the world”, then there is nothing wrong in it.

Considering that India is still a conservative society where PDA is frowned upon, it will not be easy for it to adapt to the new behavioural patterns of its young. To express affection is a human need and those in positions of power need to temper their moral zeal with the reality of contemporary times.