[Vol 2/ Issue 1/ May 2016] [ISSN 2394-9295]

Divya Ann Samuel


6th Semester

Amity Law School, Noida (U.P)

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The term „Dharma‟ has been used occasionally, yet, with great emphasis by Indian jurists in various judicial pronouncements. The nexus between „Dharma‟ and Indian jurisprudence is very old. It dates back to the ancient times when India was not invaded and the culture was in a crude form. There were neither rules nor law to govern the conduct of people. So, the imperative need to satisfy and govern the relations among humans was aided by „Dharma‟. This in turn slowly gave way to „moral policing‟. Directing the actions of others is often taken up as a inherent duty of some vigilante groups. The question posed before the present generation is whether there exists a need of such groups for directing their actions, especially when we have cultures being unified.This paper highlights these recent double standard opinions of Indians. The basic issue of individual interest vis -à -vis community interest has also been discussed. The entire paper addresses the issue of whether moral policing is a social adroitness or a mere evil.

Keywords: Dharma, Moral Policing, Status of Women.


According to Manu, the fear of danda(punishment) made people follow „dharma‟.[1] The King had the duty to ensure that his subjects followed the path of „dharma´. The Kings therefore played the role of moral police‘. This is how the concept of moral policing‘ came into existence.However, with the march of time and progress of Indian society, the concept of law and therefore, of jurisprudence has changed radically[2]. India is developing. Development process involves exchange of cultural, social and religious values besides exchanging commodities. ―The relationship between culture and development should be clarified and deepened in constructive and practical ways. [3]


It is really very painful to make people understand the importance of women in the society. The very effort made to make people understand this topic is sufficient enough to say that the condition of women has undergone a drastic change, change which none of us was expecting. It is alarming that what happened to a society where once the married women has equivalent right to that of men is now fighting to safeguard their basic rights. It is also thoughtful that why a women finds more difficult to adjust in the society after divorce or death of husband. The grief or the pensive mood of a woman is the only reason or is there a social barrier which leads to such kind of problems. However, various guidelines given by so called spiritual leaders became binding on women. If this society has to grow and grow in a constructive way then it has to think

above all this. Restrictions have to be reasonable, even the restrictions put on the fundamental rights of the citizens, in Indian constitution is reasonable and apt and not just mere restrictions.

B.R Amedkar said ―I measure the progress of a community by the degree of progress of which women has achieved. [4] Thus it can be inferred that value of a society can be accessed by analysing what place women hold in the society. Among the several factors on which we substantiate the greatness of Indian culture, one is granting a respectable place to women in the society.

No society is complete without women. The fact cannot be denied that women in these days is giving a tough fight to men in almost every field whether it related to science, literature, sports, etc. If we have Leander Paes in tennis then we also have Sania Mirza in the very same field. If we can‘t ignore the contribution of SardarVallabhbhai Patel as a leader we can‘t close our eyes and abstain ourselves from seeing the achievements of the iron lady of India ―Indira Gandhi . The point here is not that women is giving tough challenge to men but they are equally capable of performing any task and the society must acknowledge this fact.

Women do need to be given space for growth and equal opportunity. This should not come at the expense of exploiting all innocent men. Hell hath no fury like a scorned woman‘, rightly quoted Shakespeare. Applying it to the present scenario, this would mean false allegations of sexual harassment by a woman who seeks revenge against her male counterpart. The posting of a video by an Indian actress, whereby she defies moral policing‘ to certain extent cannot be fully supported. Eradicating Moral Policing‘ completely will lead to people terming adultery[5] as My Choice‘.

We do not hold the opinion that only women are exploited. Men too, at times, are subject to ill – treatment. In Dastane vs. Dastane[6], though justice could not be fairly be done to Mr.Dastane, yet it must be mentioned that he was victimized by his wife.


Kiss of Love‘ movement has its roots in Kerala. A brain child of the commoners, including students and youngsters, it got a nationwide support. The apparent purpose of the movement seems to be an instrument to defy the moral policing of the orthodox people. It not only aims to endorse kissing ‘but also urges the citizens to be compassionate to each other by defying hate and criticism. The followers of extreme right-winged thoughts attacked the restaurant ―Down Town in Kozhikode, because they believed young people spending time there were being immoral[7].

This movement was an initiative of a group called Free Thinkers. ‘The Facebook page for the site says of the event that young bloods join their hands together to prove to the society that kiss is the symbol of love’.[8] The protest was announced after Bharatiya Janata Yuva Morcha volunteers vandalised a cafe in Kozhikode claiming that they were prompted to do so by the ―immoral activities that took place in the cafe.[9] Media speculation indicates that this was a reference to footage of youngsters kissing in the cafe[10]

The supporters of this movement were attacked from two sides; on one side there were right wing anti­kiss ‘campaigners, who went to the extent of vandalizing the area and causing grievous hurt’[11] to the supporters.

A rather peaceful movement turned out to be a scrimmage between the two groups. On the other side was the State which had use force to maintain law and order.

Situations where speakers are silenced by the state because an unruly crowd creates pressure through its violence are what American jurist Harry Kalven was trying to describe when he coined the term heckler‘s veto[12]. Kalven pointed out that ―if the police can silence the speaker, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not approve.[13] The ones who support ―Indian Culture should take a look at Indian history before calling the act of kissing a result of westernization. It would be surprising to know that kissing in India is as old as Mahabharta. Its first signs were seen in the epic.

It is believed by the researchers that it was after the invasion of Alexander the Great in Punjab that kissing spread all around the globe. Further proof that India was the birthplace of the kiss, Mr. Bryant said, is the origin of the word itself. He points out that in ancient India, ―busa or ―bosa were used to refer to kissing and from these early words, the Latin term for kiss basium and the Old English words ―ba and ―buss are derived.[14]A question often which arises is that when India is land of origin for Kamasutra, then why does holding of hands becomes a big scandalizing news for everyone, ranging from commoners to celebrities? The answer to this is in the underlying fact that women are considered to be the property of their fathers‘ and husbands‘.


The important ingredients to constitute offence[15] of obscenity, the act include: 1. The act must be done in a public place

  1. The act must cause annoyance to others.

The legal test of obscenity is satisfied only when the perverted interest in sexual matters or having a tendency to morally corrupt and debase person likely to come in contact with the impugned act.[16] A clear demarcation between a vulgar and an obscene act must be known. Though annoyance is an important of this offence, it being associated with mental condition,[17] has often to be inferred from the proven facts.

At this point, it will be important to take into account the Court‘s opinion over the same.

In India, prior to 2014, the Hicklin‘s test was followed to define obscenity. Cockburn, C.J. in the Hicklin‘s case said ―We need not bowdlerize all literate and thus rob speech and expression of freedom. A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way. [18]

In Director General of Doordarshan and Ors. V. AnandPatwardhan&Anr.,[19] Supreme Court has again referred to the Hicklin test and observed that the relevant questions are:

  1. Whether the average person applying contemporary community standards would find that the work, taken as a whole appeal to the prurient interest.
  2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically, defined by the State law.
  3. Whether the work taken as a whole, lacks serious literary, artistic, political or scientific value.

In the case of Aveek Sarkar vs. State of West Bengal &Anr.[20], the test clearly discarded the Hicklin‘s test. It stated that the concept of obscenity keeps on changing with changing social values. It lay down that there should be a ―community test to verify the obscenity of an act.

It reiterated the fact that the community must adjudged from the point of view of an average man by applying comparative thinking standards.

The values of people staying in a metropolitan area and those staying in villages will vary drastically. In a relatively backward area, something against the community standard would become illegal. The actions of people in Metropolitan cities are a little more acceptable with regard to breaking of the usual trends of the community.


The Constitutional bench of Supreme Court in 1965[21], held that what might seem obscene at one point of time, might not be the same in time to come. Following in this, in 1969[22], Supreme Court again reiterated the principle calling the societal standards as ―fast changing .In the case of S Khusboo vs. Kanniammal[23], hon‘ble Supreme Court observed that obscenity should be ascertained with respect to the modern community standards[24].Apparently on a weighing scale, if measured, community‘ perceptibility of an act weighs more than an individual western outlook of things. However, the Supreme Court has considered contemporary mores‘ to determine obscenity. It has clarified further that while measuring the standards it does not include a sensitive group of persons‘[25].

Stern, a German magazine, published a nude photo of Boris Becker and his dark­skinned fiancée Barbara Feltus. The magazine had a worldwide publication. The purpose of the photograph was to condemn apartheid‘ and promote love by defying hatred. The Court held that the purpose that had to be conveyed is important. The purpose was to prove that love knows no race, caste, or religion.

The Hon‘ble Supreme Court in the case of Ranjit Udeshi vs. State of Maharashtra[26], observed that the test of obscenity must square with the freedom of speech and expression guaranteed under the Constitution and the Court to reach a decision on a constitutional issue of a most far reaching character and it must beware that it must deviate from the guaranteed freedom[27].Kissing and hugging in public places, if is consensual, a case cannot be made out of it[28].On the eighteenth of September, 2008 a couple was booked under the charges 294/34 of the Indian Penal Code, 1860[29]. The couple went to the Dwarka Court Complex to get their marriage registered. Due to some reasons they had to wait outside the complex. They decided to stand under the Delhi Metro Pillar. They then decide to take pictures together and allegedly kissing in public‘. It was then that their ordeal began. They were then spotted by a PCR van and arrested thereafter. The Delhi High Court in its order dated February 2, 2009 dismissed all the FIRs against the couple. It said that it is not an offence for the married couples to kiss or hug in public.


In the case of BashehsarNath vs. Income Tax Commissioner[30], the Supreme Court held,

“It is not open to citizen to waive any of his fundamental right…… These rights have been put in the Constitution not only for the benefit of the individual but as a matter of public policy for the benefit of the people.”

This proves that in India community as a whole is sought to be protected over the individual. This brings to light the lacuna of a democratic country, where the interest of an individual is weighed against the interest of his society. Many jurists talk about harmonizing the conflicting interests of individuals and community, as done by various other countries including France.

Over the years, various reforms have been brought about by way of amendments in statutes and in interpreting the provisions of various statutes. For instance, introduction of Sec. 498A in the Indian Penal Code, by the Criminal Law (Amendment) Act, 1983[31] to combat menace of dowry deaths.

Also, in the case of M.F Husain vs. Raj Kumar Pandey & Etc.[32], the painting made by M.F Husain of a nude woman showing her agony was thought not to be obscene under Sec. 294 of IPC.With these modern interpretations a liberal approach to the bisexuals is also being evaluated by the Parliament. The Principle bench of Central Administrative Tribunal, New Delhi, in February, 2012 expressed a similar idea on the same lines. The Hon‘ble Chairman said that the sensitivity to the changing perspective and concepts of morality should be maintained in order to appreciate today‘s changing perspective.


The right to freedom of speech and expression[33] can be said to violate this right of individuals.Exception to the freedom of speech lies in Art. 19 (2). The reasonable restriction so imposed, earlier included national security‘, but the Supreme Court rejected this to be included as an exception. The Nehru government then later added public order‘ as an exception while explaining

reasonable exceptions‘. This, however, resulted in Supreme Court to permit prior restraint‘ of speech and expression for the purpose of law and order. In the case of Babulal Parate vs. State of Maharashtra[34] the court upheld anticipatory restriction of freedom of speech and expression in the interest of public order.

Silencing people under the shield of law is however made the Judiciary play an active role and protect people‘s right. Supreme Court never has directly used the term heckler‘s veto‘ but has acknowledged at many instances. In the case of S. Rangrajan vs. P. Jagjivan Ram[35], it was held that freedom of expression cannot be supressed on account of threat of demonstration and processions or threats of violence…. the State cannot plead its inability to handle the hostile audience problem.

The phrase heckler‘s veto‘ features in a 2006 Andhra Pradesh High Court judgment, Lakshmi Ganesh Films and Ors. vs Government Of A.P.[36], where the court examined a state government notification suspending the screening of the film The Da Vinci Code. Justice Raghuram‘s compelling judgment supports both the right to freedom of expression and the right to receive information.[37] It states categorically ―dissenters of speech and expression have no censorial right in respect of the intellectual, moral, religious, dogmatic or other choices of all mankind , and announces that the State government‘s censorship order ―mechanically certified the heckler‘s veto of a few objectors.[38] It is hoped that the judiciary continues to protect speech as firmly, and the legal framework is made more resistant to compliance with the heckler‘s veto.[39]


Moral Police which blames women for being the victims cannot be justified by any law. Criticizing a woman for what she wears or loathing her body or considering them as commodities is not correct. This opinion of the vigilante groups has to be changed.Moral Policing has gone to such extent that there are often instances where siblings are subjected to abuse and assault when travelling alone. We are not of the opinion that public nuisance[40] should be encouraged and decriminalized. A thin line lies between public nuisance and obscenity‘. The aim is to increase the tolerance towards the word obscene‘, thereby discouraging the goons to come up to people having normal conversations with opposite sex.Moral Policing is no more a social skill. It now has become a shield to implement orthodox and meaningless ideologies on the new generation. It has now become a social incompetence to hinder the growth of citizens and in turn the country as well.


[1]Dr. N.V Paranjape,Studies in Jurisprudence And Legal Theory ,Central Law Agency 6th edition, Pg.2 [2]Ibid.

[3]Our Creative Diversity, Report of the World Commission on Culture and Development, July 1996, Paris,

Pg. 8

[4]B.R. Ambedkar Quotes available at, last visited on January 28, 2016

[5]Adultery is an offence under Section 497 of Indian Penal Code. Adultery cannot be justified by any means. [6]1975 AIR 1534

[7]Interview given by Rahul Pasupalan, 28,( A software engineer till six months ago he is now working on a film script) to NDTV, available at -i -started -the -kiss -of -love – movement -731276, last visited on January 28, 2016

[8] Kiss of Love‘ arrests and the heckler‘s veto available at -ed/kiss -of –love -arrests -and -the -hecklers -veto/article6575493.ece, last visited on January 28, 2016


[10] Kiss of Love‘ arrests and the heckler‘s veto available at – ed/kiss -of -love -arrests -and -the -hecklers -veto/ (last seen on 14/05/2015)

  1. Section 320 of Indian Penal Code, 45 of 1860.
  2. Editorial, ―Kiss of Love arrests and the heckler‘s veto , The Hindu on 08/09/2014. [13]ibid
  3. ibid
  4. Section 294 of Indian Penal Code, 45 of 1860 states,

“Whoever to the annoyance of others,

  1. Does any obscene act in any public place, or
  2. Sings, recites or utters any obscene songs, ballads or words, 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 both.”

  1. State vs. Manmohan Kalra & Ors., FIR No. 391/2006, on 31May, 2014. [17]The Pearson Guide to LLB Entrance Exam, Pg.43

[18]Available at -the -supreme -court – discards -the -hicklin -test/, last visited on January 28, 2016.

[19]2006 (8) SC 255

[20](2014) 4 SCC 257

[21]Ranjit D. Udeshi vs. State of Maharashtra, AIR 1965 SC 881 [22]ChandrakantKalyandasKakodar vs. State of Maharashtra, (1969) 2 SCC 687

[23](2010) 5 SCC 600

[24]See also Samresh Bose vs. AmalMitra, 1985 (4) SCC 289 [25]AveekSarkar vs. State of West Bengal, 2014 SCC 257 [26]AIR 1965 SC 881

  2. The Supreme Court of India responded to a petition filed by Richard Gere to quash the arrest warrant issued by Jaipur High Court.

[29]A and B vs. State Thr. N.C.T of Delhi and Anr., 2010 CriLJ 669; in this judgement the High Court ordered for a disciplinary action against the SI who arrested the couple.

[30]AIR 1959 SC 149

[31]Act 46 of 1983

[32]2008 Cr LJ 4107 (Del)

[33]Article 19 of the Constitution of India states ―Protection of certain right regarding freedom of speech, etc.

23. All citizens shall have the right

  1. To freedom of speech and expression;
  2. To assemble peaceably and without arms;
  3. To form associations or unions;
  4. To move freely throughout the territory of India
  5. To reside and settle in any part of the territory of India;
  6. Omitted
  7. To practice any profession, or to carry on any occupation, trade or business.”

[34]AIR 1961 Sc884, 1961 SCR (3) 423

[35](1989)(2) SCC 574 [36]2006(4)ALD374,2006(4)ALT188

  1. Available at -ed/kiss -of -love -arrests -and -the -hecklers – veto/article6575493.ece(lastseen on 14/07/2015)
  2. ibid [39]ibid
  3. Section 268 of Indian Penal Code,1860 specifies that public nuisance cannot be excused even on the ground of convenience‘.

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