Obscenity: Public conscience or Individual Liberty?

The definition of obscenity both in law and language is vague, but the test of criminality is “whether the exhibition or matter tends to deprave”. Obscenity is often defined as “lewd, impure, indecent and calculated to shock the moral sense of man by a disregard of chastity or modesty. The word “obscenity” used in Section 294 IPC should have a similar meaning to what is explained in Sections 292 and 293 IPC.[1] Section 294 is intended to prevent obscene acts being done in the public to the annoyance of public at large and it does not limit the scope of the word “others” to mean the person who is intended victim of the obscene act of the accused.[2] In these cases what is paramount is the interest of the society. Sections 87 and 88 cannot come into play in these cases where interest of the society is involved.[3] The accused persons were charged with acts of gross indecency with their child by making him to watch while they had sexual intercourse. It was held that it was not necessary for actual satisfaction on the part of the accused to be proved, merely showing that the acts had been done with the intention of deriving sexual satisfaction from them was sufficient.[4] The word obscenity is not really vague because it is a word which is well understood even if persons differ in their attitude to what is obscene and what is not.[5]

1.Subjectivity in morality

Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and criminality are not coextensive.[6] The courts should be sensitive enough to the changing perspectives and concepts of morality to appreciate the effect of Section 294 on today’s society and its standards and changing views of obscenity.[7] Statutory expressions are not petrified by time but must be updated by changing ethos even as popular ethics are not absolutes but abide and evolve as community consciousness enlivens and escalates.[8] The test to determine whether public order is disrupted or has tendency to disrupt, is, does a particular act lead to disturbance of the current life of the community or does it merely affect an individual leaving the tranquillity of society undisturbed?[9]

2.Individuals can differ from popular morality

It is not the task of the criminal law to punish individuals merely for expressing unpopular views.[10] However, there should be a compromise between the interest of freedom of expression and social interests. Courts commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. It should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”.[11] The Court has consistently recognised that the exercise of preserving privacy involves, in the main, a balancing of rights such that the right and legitimate countervailing interests do not operate to negate the other.[12] Where two men were engaged in some sexual activity with the accused (female), it was held that the offence of obscenity cannot be sustained.[13]

3.Community standards are driven by collective conscience

Standards as to what is moral or immoral are set up by the prevailing conscience of the society. As observed in a case in United States[14]:

… It may be manifest, unwritten and more or less nebulous, as legend, as tradition, as opinion, as custom and finally crystallised, written as the law. Thus the standard is fixed by the consensus of opinion, the judgment of majority. When the majority is slight there is, of course, greater opposition on the part of the minority to the standard. The majority may become the minority and the standard change. But so long as it is established measurement must be made according to its terms.

4.Obscene act in private place is no offence

In his ruling, in State of Maharashtra v. Joyce Zee[15], Justice Vaidya has observed that he has grave doubts as to whether places like Hotel Blue Nile could be considered to be such a public place within the meaning of Section 294 when an admission fees as required to be paid for the cabaret shows as was done in that case. He proceeds to observe that when an adult person pays and goes to attend such a show he runs a risk of being annoyed by the obscenity or being entertained by the very obscenities according to his taste. From these words a doubt is raised, whether hotels like the one involved in this case are public places or not. Section 294 IPC is meant for punishing persons indulging in obscene act in any public place causing annoyance to others. As such, the places where such obscene act is committed needs to be a public place and meant for use of public at large. Public must have free access to such place so as to call it a public place. The place where public have no right to enter into, cannot be said to be a public place for invoking penal provisions of Section 294 IPC for calling a place as a public place. Viewed from this angle, the flat/apartment in building owned by some private person meant for private use of such owner cannot be said to be a public place.[16] Where admittedly the words were uttered in the closed chamber, it cannot be said that obscene words were uttered in or near the public place.[17]

5. The prerequisite proof of annoyance

The mere fact that the act is obscene does not conclude the matter. On a plain reading of the section it would be clear that the section is intended to prevent obscene acts being performed in public to the annoyance of the public at large. Annoyance to others is an essential ingredient to the offence under the section.[18] In order to constitute an offence, it must cause annoyance to others. Without annoyance the act would be no crime.[19] There must be actual annoyance and not merely the probability of it. There must be some person to say that the act done, or the song sung has annoyed him.[20] The said acts of the accused have neither caused annoyance to anybody nor there is any such complaint forthcoming. Only on some information the police themselves conducted a raid and registered a case. It is further stated that the third ingredient of Section 294 IPC i.e. causing annoyance to others is not forthcoming. Therefore, the accused are not liable for prosecution for the offence punishable under Section 294. In Narendra H. Khurana v. Commr. of Police[21], the Bombay High Court held that cabaret dances where indecent and obscene act is performed would not attract the provisions of Section 294 IPC without filling its essential requirements i.e. evidence pertaining to “annoyance to others”. How the impugned act could cause annoyance to those who do not watch it or affect public order is not understood. It is like saying that watching a Hindi movie which has dance sequence and the dancers are skimpily dressed, would result in affecting public order.[22] To prove the offence under Section 294 IPC mere act is not sufficient, but there must be a further proof to establish that it was to the annoyance of others, which is lacking in this case. Where the accused were found kissing near a police checkpoint in the presence of police officials, kissing by two young people without any intention of annoying anyone was not considered obscene.[23] Presence of at least one person is necessary, otherwise annoyance cannot be proved and hence the accused cannot be held guilty.[24] There is no dispute that a bar and restaurant is a public place, but however there is no evidence that goes to show in the charge-sheet that annoyance has been caused to others. Therefore, the prosecution against the petitioners is nothing but an abuse of process of law.[25]

6.He does so to the annoyance of others — Positive Evidence may not be Required

Under Section 294 unless annoyance is caused the act cannot be said to be obscene. The test of obscenity is whether there was a tendency in the act to deprave and corrupt those whose minds are open to such immoral influence.[26] Annoyance, an important ingredient of the offence under this section is generally associated with the mental condition and for that reason it is difficult to prove it as a fact by positive evidence. In almost all the cases it is to be inferred from proved facts.[27] In Nicholson v. Glasspool[28], it was held that:

On a charge of an offence against a bye-law prohibiting the use of obscene language in a street to the annoyance of a person therein, where there is evidence that the defendant spoke audibly and that the nature of the language was obscene and calculated to annoy, justices are entitled to infer annoyance and convict, even though no positive evidence of any person having been annoyed was called by the prosecution.

The prosecution case does not suffer from the lack of proof of annoyance if the victims of the obscene acts were not produced as witnesses.[29] Where words uttered were obscene, whether those words are/were likely to deprave and corrupt those whose minds are open to such immoral influences is a question of fact to be decided based on the evidence that may have to be adduced by reference to the meaning attributed to those words in that particular region/locality. The tone and tenor of those words and the meaning of those words, whether hearers are likely to suffer mental shock on hearing such words, whether those words are actually intended and used in that locality as obscene are questions of fact to be decided based on the evidence that may have to be adduced.[30]

7. Annoyance to be calculated on the parameters of probability

In R. v. Farrell[31], the Court held that:

If there had been others who in such a situation as that could have seen the prisoner, there would have been a criminal offence. The inference is that if the obscene act is committed in a public place and that is sufficient to cause annoyance, even if no annoyance is caused, would constitute obscenity.

8. Annoyance to others to be interpreted in reference to general public

This question has to be considered and answered in broader perspective and not limited to the customers who were sitting in that bar and restaurant. It may be a fact that only such people who intend to see such indecent activity will go there and derive pleasure or enjoyment by looking at such obscene activity. Normally, persons who do not like to see such indecent activity in public places may not enter into such bars and restaurants where such activity is going on. The author is of the considered opinion that the phrase “to the annoyance of others” occurring in Section 294 IPC has to be interpreted objectively with reference to general public and not subjectively with reference to the persons sitting and viewing the same in that bar and restaurant where obscene activity was going on. That is the reason why Section 294 IPC does not say that it should be to the annoyance of persons who are within the precincts of the activity. Section 294 IPC speaks of “to the annoyance of others” thereby meaning that such activity was to the annoyance of others who are not within the precincts or premises of the activity.[32] Annoyance is generally associated with the mental condition and for that reason it is difficult to prove as a fact by positive evidence. It has to be inferred from the facts.

9. Conclusion

Section 294 of the Penal Code, 1860 cannot be used as a tool for invasion of civil liberties. Public disapproval of certain acts cannot lead to curtailment of fundamental rights. Public morality should not override constitutional morality.

*  Student, 4th Semester, BA LLB (Hons.), National University of Study and Research in Law, Ranchi. The views expressed in this article are those of the author and do not necessarily represent those of any other source.

[1]  Dhanisha v. Rakhi N. Raj, 2012 SCC OnLine Ker 31595.

[2]  Zafar Ahmad Khan v. State, 1962 SCC OnLine All 170 : AIR 1963 All 105.

[3]  Deepa v. SI of Police, 1985 SCC OnLine Ker 285 : 1986 Cri LJ 1120, 1121.

[4]  R. v. R. (J), 1993 Crim LR 971 (CA).

[5]  Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881 : (1965) 1 SCR 65.

[6]  S. Khushboo v. Kanniammal, (2010) 5 SCC 600.

[7]  Pawan Kumar v. State of Haryana, (1996) 4 SCC 17.

[8]  Bobby Art International v. Om Pal Singh Hoon, (1996) 4 SCC 1.

[9]  Shreya Singhal v. Union of India, (2015) 5 SCC 1.

[10]  S. Khushboo v. Kanniammal, (2010) 5 SCC 600.

[11]  S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.

[12]  Gaskin v.  United Kingdom, (1989) 12 EHRR 36, ¶42.

[13]  Honey Thankachan v. State of Kerala, 2012 SCC OnLine Ker 31593.

[14]  State v. Malusky, 71 ALR 190; 230 NW 735 : 71 ALR 90 (ND 1930).

[15]  1973 SCC OnLine Bom 141 : ILR 1973 Bom 1299.

[16]  Amardeep Singh Chudha v. State of Maharashtra, 2016 SCC OnLine Bom 2286.

[17]  Sharad Dave v. Mahesh Gupta, 2005 SCC OnLine MP 21.

[18]  Khitish Kumar Purohit v. State of Orissa, 1991 SCC OnLine Ori 341.

[19]  Strickland v. Hayes, (1896) 1 QB 290, 293.

[20]  Innes v. Newman, (1894) 2 QB 292.

[21]  2003 SCC OnLine Bom 1109 : 2004  Cri LJ 3393.

[22]  Indian Hotel & Restaurants Assn. v. State of Maharashtra, 2006 SCC OnLine Bom 418 : (2006) 3 Bom CR 705.

[23]  Atul Jain v. State of Haryana, 1988 SCC OnLine P&H 749.

[24]  Lila Dhar v. State of Haryana, 2011 SCC OnLine P&H 12847.

[25]  B. Ashok v. State of A.P., (2005) 3 AP LJ 33 (SN).

[26]  R. v. Benjamin Hicklin, (1868) LR 3 QB 360; State of Maharashtra v. Christine Kelly, (1978) 4 UCR (Bom) 277.

[27]  Patel H.M. Malle Gowda v. State of Mysore, 1972 SCC OnLine Kar 250 : 1973 Cri LJ 1047, 1048.

[28]  (1959) 123 JP 229.

[29]  Zafar Ahmad Khan v. State, 1962 SCC OnLine All 170 : AIR 1963 All 105, 107.

[30]  Dhanisha v. Rakhi N. Raj, 2012 SCC OnLine Ker 1931.

[31]  (1862) 9 Cox CC 446, 447, 449.

[32]  Ameer Basha v. State of A.P., 2010 SCC OnLine AP 1154.

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