Should Section 294 of the IPC, which deals with obscenity in public, be used against citizens for enjoying their freedom within their homes? A Bombay HC ruling sets the record straight
By Neeta Kolhatkar in Mumbai
What is obscenity? Who can decide which kind of art is obscene or not? For that matter, who will judge if an act performed within the four walls of a private space, causing no annoyance to others, hurts sensibilities or not? Certainly not the police! It required the Bombay High Court to pull up the Mumbai police and advise it to show restraint before intruding into the private space of citizens.
A division bench of Justices Naresh Patil and AM Badar of the High Court in a recent judgment quashed the use of Section 294 of the IPC (which deals with punishment for obscene acts or words in public) against 13 people who were arrested in Andheri, a Mumbai suburb, for so-called “perverse acts” in December.
The bench told the police: “What happens within the four walls of a house is private and not an act of obscenity.” The Court slammed the police for raiding the flat of an individual and accusing the 13 men present of dancing “obscenely” with “scantily dressed” women.
The case had its genesis last December when a journalist tipped-off the Andheri police that certain individuals were performing vulgar acts and that shady things were going on in a flat where a party was going on. The police raided the premises without a warrant. In the FIR filed, it accused the 13 men of showering money on “certain” women, who the journalist had alleged were bar dancers and sex workers.
In March 2016, when the Court pronounced its verdict, the 13 finally won their fight for justice and right to privacy. However, they bear the scars of the public ignominy they had to suffer. The party they attended nearly cost them their jobs and almost destroyed their family life.
This correspondent met one of the accused, a government official, at the chambers of his advocate Rajendra Shirodkar. He looked traumatized and embarrassed—hence he refused to divulge his identity. “I do not wish to speak about it. I will have to consult my lawyer. We do not want to be exposed. The Court has ruled in our favor,” is all that he said.
He can see the point in the press writing about the case to expose the devious methods employed by the police to charge him and others. But he is scared to speak. “It is easy to trace my story to my current work place. Being in public service, my identity should not be revealed,” he reiterated. The shame and guilt continues to haunt him and others involved.
His lawyer Shirodkar is vocal in articulating his objection to the police high-handedness in the case. “The police have no right to barge into someone’s home and arrest them under Section 294. It is absolutely unfounded as this Section does not apply in this case. There are clear guidelines under which circumstances the police can raid any premises and it has to strictly adhere to them. The police has made baseless allegations by calling the women dancing as sex workers because they were scantily dressed. They alleged my clients indulged in perverse acts. What do they mean by perverse acts? They held a party, they had a DJ playing music… nothing was done to offend the public,” added Shirodkar.
How Obscene are Condom Packets?
Do explicit pictures and illustrations on condoms, contraceptives and sexual wellness products breach obscenity laws? A Supreme Court bench headed by Chief Justice TS Thakur has put this query to additional solicitor general Maninder Singh and given him six weeks to give his assessment.
The apex court was hearing a petition filed by Hindustan Latex and other condom manufacturers against a Madras High Court order of 2008 which directed condom manufacturers to keep their packaging free of explicit illustrations and photographs as these were an affront to Indian sensibilities and culture.
The manufacturers obtained a stay from the Supreme Court in 2008 but in February this year, when the case came up, the court asked the government to seek the view of the Central Board of Film Certification (CBFC) on the “sexy” packaging.
Last week, the additional solicitor general got back to the court pointing out that the CBFC’s jurisdiction was restricted to films and that printed material was beyond its jurisdiction. But he suggested that other laws could be invoked to act against printed material found objectionable. So, Singh was asked to look at other options. The additional solicitor general will now have to take a close look at condom packets, past and present, to see if they violate any obscenity laws. Till the court decides, the packaging will remain as it is.
A few years ago in a similar case, the police raided a party held in a private bungalow at Lonavala (a popular weekend getaway for Mumbaikars) and filed cases against those present under Section 294. On that occasion, 46 students (both male and female) of a Mumbai-based law college were arrested at Gold Valley in Lonavla, 60 km from Mumbai. The police booked them for being scantily clad, drinking without permits and playing loud music. The arrested were released on bail and notices issued to the officers who conducted the raid.
Prior to that, customs officers on a holiday in Lonavla watching a porn film and dancing with “bar girls” were arrested by the police in a raid. The Bombay High Court had ruled in their case that watching a pornographic film in private is not obscenity as defined under criminal law. The Court had observed: “Simply viewing an obscene object is not an offense…It becomes an offense only when someone has in possession such objects for the purpose of sale, hire, distribution, public exhibition or putting it into circulation. If the obscene object is kept in a house for private viewing, the accused cannot be charged (for obscenity).”
Despite such rulings by the courts, the moral police rears its head every now and then making a mockery of the citizens’ right to privacy and freedom of expression.
Well-known Marathi writer and visual artist Sanjeev Khandekar can understand the humiliation and frustration of the 13 who were arrested in Andheri. In 2006, an exhibition that Khandekar held at Mumbai’s Jehangir Art Gallery in collaboration with Vaishali Narkar titled Tits`n Clits ‘n Elephant Dick was stopped by the police because it was deemed obscene. He believes strongly that both the police and the media have a misplaced sense of priority and morality—the reason why they found the exhibition perpetuating obscenity when it was only examining conflicting realties of market-driven societies and their peculiar cultural logic.
Does the police action reflect the narrow views that the upholders of law today have about what they interpret as obscene? In her book, Pornography and the Criminal Justice System, Carmen Cusack notes that “classification of obscenity is often dependent on localities’ sensitivities….” Further, an interesting reference is made to ancient India which was far more modern than today!
To quote from the book: “In Ancient Greece, Rome and India, depictions were publicly displayed that could be considered criminally obscene in some US jurisdictions.”
A far cry from the times we live in when the late artist MF Husain’s work was often censured and objected to for obscene depictions. Ironically, these were acts or paintings confined to spaces that the Supreme Court of India has called “private”, including art galleries.
Or take the case of Professor Shrinivas Ramchandra Siras who headed the Modern Indian Languages department at Aligarh Muslim University. On February8, 2010, two men from a local TV channel barged into his house and videographed him in a homosexual act. The professor was suspended for the “scandalous act”. He went to court and won his case and was reinstated in his job. His lawyers argued that Siras could not be penalized for being a homosexual since Section 377 of the IPC which criminalized homosexuality had been declared unconstitutional by the Delhi High Court in 2009.
Advocate Vijay Hiremath—who assisted rights lawyer Anand Grover in the case that Siras filed against his University at the Allahabad High Court—strongly condemns the very notion of barging into private space. “It was shocking. As we know, Prof Siras’ personal and private space was invaded by journalists, officials of AMU and security guards. This was in gross violation of his right to privacy. What an individual does within the confines of his home or private space is of no concern to others and legally speaking, the forcible entry is a breach and punishable.”
There are many socio-political reasons for law enforcement agencies as well as the public playing moral police. In the case of MF Husain, his alleged obscene depiction of gods and goddesses was seen to be communal by Hindutva groups and he was forced to flee the country. In Sanjeev Khandekar and Vishali Narkar’s exhibition, it was stopped at the instance of members of a Hindu group which found their work “provocative”.
As for raids on private space, the police have a protocol which must be followed. An entry in the station diary is a must and information must be confirmed and there must be sufficient evidence before raiding any premises. More often than not, these basic procedures are not followed.
Pointed out former Director General of Police of Maharashtra, Dr PN Pasricha: “Any preventive action is specifically for obscenity indulged in public places. Police should be wary of indulging in moral policing.” Citing the procedures to be followed, he elaborated: “Police require a search warrant from the court unless there is specific information that there are terrorists or members of the underworld hiding somewhere or drugs stored in a particular place. The police are expected to write all the details and keep it in a sealed envelope which is to be handed over to a senior police officer.”
According to former editor and commentator Kumar Ketkar, the invasion into private space is a clear sign of fascism. He said: “It is absolutely evident that arrogance is increasingly seen in our Indian society. Worse still, the invasion of privacy is getting social sanction and to be honest, there is no guarantee the courts will always reverse these actions, be it by the public at large or the police. The fact is privacy is getting attacked in our society today and it gets a sanction from the government. This is definitely fascism.”
Perhaps those who intrude into private space may do well to remember what writer Ayn Rand had to say in this context. In her novel The Fountainhead, she said: “Civilization is the progress toward a society of privacy. The savage’s whole existence is public, ruled by the laws of his tribe. Civilization is the process of setting man free from men.”