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Recently, the Allahabad High Court in Rituraj Mishra v. State of U.P., held that the preventive policing is lawful as it curbs the cognizable offences. Further, it has held that police has adequate power to do so under the Indian Penal Code, Code of Criminal Procedure and Police Act. However, the court did not discuss the violation of Fundamental rights enshrined under Article 19 and 21 of the Constitution. Consequently, the Uttar Pradesh police are still violating the fundamental rights under the aegis of ‘Anti Romeo Squad’ by an arbitrary exercise of police power which is impermissible under the Indian Constitution. In this article, the author will demonstrate that the current holding of Allahabad high court is in contravention with the very spirit of the freedoms/ rights enshrined in the Constitution of India.
Moral Policing is a term used to define the act which enforces morality on society. These days vigilantism is quite infamous for moral policing. People often take law in their hand and enforce moral policing. However, at times police also indulge in this kind of moral policing. Police personnel in the name of obscenity go on to violate the constitutional rights of the people.
These are some of the recently reported incidents of moral policing. The police aggravate traditional patriarchal value as they are insensitive towards constitutional values and they have lack of sensitivity training. The police claim that they have power under Section 144, 149- 151 and 165 of Code of Criminal Procedure, 1973. These provisions give wide power to the police and executive to control the public nuisance, tranquillity and prevent the cognitive offences. However, the police cannot use these provisions in violating the fundamental rights of an individual without any lawful justification. The object of these provision and constitutional protections curb the wide power of the police. In order to understand the constitutional protection, the author discusses the substantive and procedural aspect of moral policing in the following parts.
Section 294 of Indian Penal Code, 1860 [“IPC”] provides that whoever indulges in the obscene act in any public place will be liable for punishment. To fall within the scope of “obscene” under Section 292 and 294, the ingredients of the impugned matter must lie at the extreme end of the spectrum of the offensive matter. The legal test of obscenity is satisfied only when the matter can be said to appeal to an unhealthy, inordinate person having perverted interest in sexual matters or having a tendency to morally corrupt and debase persons likely to come in contact with impugned matter. Further, the obscene act must cause some annoyance. In this regard, the Bombay high court once held that cabaret dances where indecent and obscene act per se is involved would not attract the provisions of Section 294 of IPC without fulfilment of its essential ingredients i.e. evidence pertaining to annoyance to others. Further, the Supreme Court lifted the ban on dance bars holding that “we fail to see how exactly the same dances can be said to be morally acceptable in the exempted establishments and lead to depravity if performed in the prohibited establishments. We see no rationale which would justify this differentiation.” Thus, these cases incline toward the strict interpretation of the provision in order to save the misuse and arbitrary application. However, the police without fulfilling the relevant ingredients go on to take actions against a person under the heading of obscenity.
Moreover, under section 294 IPC, Public Display of Affection (PDA) is not explicitly prohibited however it is considered to be obscene because of regressive and patriarchal nature of the society. In addition, the police and society discriminate between married couple and unmarried couple. It is very rare that an old couple is being charged for obscenity. Once, the court stayed further proceedings against married couple on primarily two grounds: (a) they were married (b) there were no witnesses to testify that they were annoyed by them. The court went on to say, “it is inconceivable how, even if one were to take what is stated in the FIR to be true, the expression of love by a young married couple, in the manner indicated in the FIR, would attract the offence of obscenity and trigger the coercive process of the law.” However, there are two problems in this judgment. Firstly it stresses on the expression of love by a married couple and secondly the court is reluctant to define the boundaries of obscenity. The court left questions unanswered for unmarried couples. Moreover, The Supreme Court criticized the complainant for levelling charges against Richard Gere (American actor) for kissing Shilpa Shetty publicly and said depreciatively that such complaints are publicity hunting and bringing a bad name to the country. Thus, the judicial pronouncements are inclined towards curbing the obscenity laws in the cases of PDA. Therefore, the substantive law regarding moral policing is contrary to its current practice as it strictly restricts arbitrary police activities.
As in the earlier section, we found that the obscenity law is a regressive one and not defined properly and thus, misused many a time. Now, this section will examine the procedural aspect of moral policing. Under Section 144, 149 to 151 and 165 of Code of Criminal Procedure, 1973 [“CrPC”] the police often charge the couples and violate their dignity.
Firstly, Section 144 lays down the power to issue an order in urgent cases of nuisance or apprehended danger. This section deals with preventive action in cases of urgent nuisance or apprehended danger which includes danger to human life, public annoyance and tranquillity. Thus, the police often claim that they have the power of moral policing under this section as a preventive measure. However, an order under this section is essentially an executive (Police) function. An order under this provision is administrative in nature and hence, it is neither judicial nor quasi-judicial. So such order is challengeable if it violates any fundamental rights. In forthcoming sections, the author will lay down how fundamental rights are violated and thus, the power of police to be restricted in cases of moral policing.
Further under Section 149 and 151 the police mostly use its wide power to exercise moral policing. Section 149 states that in order to prevent cognizable offence, police can interpose. Furthermore, Section 151 gives power to police to arrest the person knowing of a design to commit any cognizable offence without orders from a magistrate and without a warrant. Thus, police use its power to prevent the cognizable offence like obscenity under Section 294 IPC. Moreover, the arrest is justified under Section 151 if the police are acting under an honest impression or appearance and from which a reasonable man would infer the design of the commission of a cognizable offence. Thus, while using the power the police must ensure that the obscenity is being done. But in the earlier section, we found that laws of obscenity are unsettled and widely misused. Therefore, it makes the police action also unconstitutional because fundamental rights are violated on the basis of improper procedural law and substantive law. Besides, in the dynamic world where obscenity is being liberalized to a large extent, the police action of moral policing only on the ground of public display of affection or having heterosexuals together shows the gross violation of constitutional protection guaranteed under Article 19 and 21.
Article 19 (1) (a) empowers every individual to have freedom of speech and expression. In A and B v. State the NCT of Delhi it has held that hugging and kissing forms a part of freedom of speech and expression which is the legit source of showing love and compassion towards your partner and hence is protected under Article 19(1) (a) of the Constitution of India. Furthermore, when the reasonable restrictions are taken into account as provided in Article 19(2) it is to be noted that the interpretation of the word obscene is uncertain within the meaning as given under Section 294 of the IPC. In addition, the act should be of such a nature that it causes the public annoyance in order to fulfil the essential ingredients of obscenity. Thus, these two reasons make the restriction under Article 19(2) arbitrary application of the law.
Further, after the inclusion of Right to privacy under Article 21 of the Constitution of India, the violation of Fundamental Right is more detrimental. Because now not only Article 19 (1) (a) is being violated but also Article 21 is also gets violated. In K.S. Puttaswamy v. Union of India, the court held that the right to privacy is an intrinsic part of right to life and liberty and Part III of the Constitution. In this case the court referred to Wolf v. Colorado, a US Court judgment in which court opined the police action as unconstitutional. In Wolf v. Colorado, the police action was violating the privacy right of individuals resultantly the court curbed the police power against privacy rights. Following the same reasoning, the Supreme Court of India held that the state cannot take immunity in cases of violation of individual privacy. Thus, the court upheld the right to the human dignity of the individual. Further, Justice Kaul in the aforementioned judgment observed that the individual has the freedom in choosing his/her relationship. He stated that when the courts identify an infringement of a person’s rights, and in particular in the context of his freedom to conduct his sex life and personal relationships as he wishes, it is right to afford a remedy and to vindicate that right. Thus, it implies that the breach of this freedom leads to violation of the fundamental right guaranteed under Article 21 of the Constitution.
In the progressive world, such laws and police actions are completely draconian one. In this regard, India should follow the international laws and laws of other countries which provide wide protection to individual rights. Universal Declaration of Human rights (UDHR) provides freedom from arbitrary interference of the police as per Article 12. In addition, the International Covenant on Civil and Political Rights (ICCPR) under Article 17 provides the same freedom to the individuals. Interestingly, India is a signatory of both the international law, however, does not provide the same protection to its citizen. Further, the Indian Constitution mandates the authority to respect individual privacy and obligates to provide protection toward it. Therefore, proper guidelines to be issued by the Supreme Court keeping in mind the constitutional protection and inherent immorality in the police actions, at earliest.
ABOUT THE AUTHOR(S)
Devesh Kumar is a third-year law student at National Law University, Jodhpur.
Viraj Virvadia is a third-year law student at National Law University, Jodhpur.
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