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Love and let love - An analysis of Section 294A of IPC,1860

Starting from the days of traditional thoughts, India has never accepted the expression of love, in its entirety although our society believes that love knows no boundaries and it has the ability to reform any situation but still it hasn’t believed its expression.  The orthodox attitude, and blind following of the customs prevailing in our fraternity/ league, the older generation has never looked beyond the spectrum and always lived with the belief of love with no expression.

However, the society being dynamic, the new generation with its modernised mind set welcomed this expression of love whether in public or private with its reasonable fencing which will govern the people and gladly accepted its validity and thus going in contradiction to the older generation which looked at this expression with a raised eyebrow.  It is quite unfortunate to bring up the fact before the world that if love constitutes the basic and integral part of human mechanism, then why does the question of restrictions come for the expression of the same.

Expression of love through the means of kissing each other is quite common in western culture but still it is regarded as a prohibited act in the domain of public sphere, not considering the fact that there exist a full chapter in Kama Sutra (Hindu Text on erotic love) describing the art of kissing consisting 30 varieties. Temples of greater value such as Khajuraho and Konark Temple which contributes immensely to Indian heritage has shown various erotic sculptures expressing love and affection, therefore time immemorial Indian heritages have shown the expression of love and with all its unrestricted boundaries and measures. However, the society has taken this acts of human as a scene of obscenity in public which needs to be regulated by the man-made law of the land.

Indian substantive criminal jurisprudence doesn’t much define the scope and extent of public display of affection in India however maximum suits in respect of obscenity are filed under sec-294 of the Indian Penal Code, 1860. It is widely considered that this section is nothing but a mere bait for moral police to feed on it. This section whoever to the annoyance of others, a) does any obscene act in public place, or b) sings, recites or utters any obscene songs, ballad, or word, in or near 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. However, the second part of the legislation is interpretable and understandable but the first part is too wide, ambiguous and unclear.

The precise definition of obscene is nowhere mentioned in the IPC however this specific term is extremely dynamic and continues to change its character with the passage of time and prominently differs from person to person and place to place, therefore no person in this world can accurately point out the fact that this act is obscene or not.

The Supreme Court in this regard, has bought a recent development named as Community Standard prevalent in the United States of America to India wherein the degree of obscenity will depend on the various communities and its attitude towards the expression of love, so if an act which is considered acceptable in one geographical arena may not be acceptable to another arena.

Determining the legality of kissing and other sort of affection in a public place, that is whether an individual has the right to show these type of affection in an Indian society or not. By the virtue of the heart and soul of Indian Constitution that is the Fundamental Rights guaranteed under Part III clearly states the freedom of speech and expression under Article 19(1)(a). The Apex Court in its various judicial pronouncements have strengthened the above fact and clearly stated that consensual kissing between individuals whether in public or in private cannot be filed before the Court of Law for its validity.

Though Article 19 which gives freedom of speech & expression, takes into consideration the expression of love in its purview has reasonable restrictions just like any other fundamental right but the restrictions are to made in interest of general public. India, where the general public consist of 60 percent of youth population, what kind and up to what extent of restriction can be imposed on the society in this regard.  India on the other hand is competing with the world in economic and social forum where cultural forum is acting as a drawback due to such thought process, controlling perception.

Therefore, what is obscene for one person may or may not be obscene for another.  An individual expressing his love towards the other person by kissing or hugging is a matter of private concern and no other person should decide upon its nature and classify it as obscene or not obscene. Rules need to be same irrespective of the act done in metropolitan area or rural area.

Restrictions though acceptable up to a certain extent but a clarity needs to be drawn upon to protect individuals from unwanted harassments and unreasonable question from the society. Absolute arbitrary restrictions in regard to these acts cannot be and shouldn’t be allowed. Social values as well as social needs to cope up with the change in the society otherwise there will be a conflict of interest which might to lead anarchy. Such acts which are criminalised under the Indian legal system has been blatantly misused by the police authorities and throws some harsh consequences on the individuals needs which to curbed with immediate effect by the State so as to protect the citizens from unreasonable false proceedings.

Therefore, the need of the hour is to demarcate what actually is obscenity under the Indian Legal system and under section 294 of the IPC, 1860. A Proper governance in this regard is of utmost importance to reduce as many as false cases pending before the Hon’ble courts of India. In today’s world where live in relationship and consensual homosexual relationship is accepted, public display of affection cannot be considered as a criminal activity under the criminal jurisprudence of India.

India from its very inception had a conservative approach towards everything including love making but this conservative mind set needs to be moulded with the needs of the western culture and its domain and although if a restriction needs to be implemented, it should be of reasonable and should be in nexus with the mind set our country wants to achieve in future years.

So to conclude, the question (to kiss or not to kiss) should not be of utmost concern to the society and the individuals infinite quest for privacy and fundamental right of freedom of speech and expression should be preserved and respected by the society in its totality. With regards to the recent development, the public display of affection is a natural way of life, a genuine kiss or a hug between individuals should not be a source of conflict.
 
Written By: Debmallya Sinha and Ritodeep Bhattacharyya

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