Quaint corners of streets, nooks in public parks, alleys in forts, parked cars – these places are often sanctuaries for lovers seeking intimacy and some alone time in our country. Not everybody has the privilege of being able to express love within the four walls of their home or a hotel room because of various social, moral and financial barriers.
Affordable homes are a distant dream in subaltern spaces, where single rooms continue to house families of 5 or more. Pre-marital affairs are secretive and cannot foster in a home. Some people feel stigmatised and judged for booking hotel rooms, while many others don’t have the money for it. We find couples engaged in public display of affection mostly for the lack of other safe spaces for romantic expression, though some may do it out of spontaneous will.
Public display of affection could surely be annoying for some onlookers but it triggers far more moral policing and surveillance in India than we can imagine. Two adults consensually kissing in open spaces attract more fury than the men urinating on public walls. Onlookers don’t intervene in a violent domestic fight in a public space, but they would drive away couples engaged in a public gesture of love.
Self-appointed vigilantes including fringes of political parties think it is their moral responsibility to threaten and beat up couples on Valentine’s Day in the name of culture. Perhaps ours is a society that has normalised expressing hate, but not love.
The Indian laws and the state are enablers of this ostracisation and policing of public love. The Indian Penal Code makes obscenity a punishable offence. Section 294 imposes up to three months of prison and fine on those who commit ‘any’ obscene act in any public place, to the “annoyance of others”. The law is clearly overbroad and open to interpretation. What causes ‘annoyance’, what falls under ‘obscene act’ is not defined anywhere. The law thus gets moulded, tailored and misused to suit moral, social motives.
While it is important to observe some level of decorum in public, it is unfair to intimidate, threaten and belittle people for their innocent and affectionate actions. I was in the third year of my law school when I heard about the police trying to extort money from two of my batchmates for making out in their car at an isolated public space.
The young students were also threatened with calling up their parents. Thankfully, they didn’t succumb to the intimidation, played their lawyer card and the police let them go with a ‘warning’.
But everybody is not that fortunate or aware of their rights. It is easy for the police or even ordinary persons to scare naïve young teens or adults and extort money from them. Incidents like these could give life-long trauma and discomfort to those at the receiving end. The movie Masaan portrayed this dark reality quite accurately.
There are many levels to this moral policing and it could be an expression of homophobia as well. Before homosexuality was decriminalised by the Supreme Court in 2018, queer display of affection lead to horrifying legal consequences in the form of long jail time and extortion in the form of fines. Section 377 is no more but our social conscience is not inclusive and prying homophobes could still report LGBTQIA+ couples for obscenity or offences against public order under the IPC. Crime record statistics show that this continues to happen.
This is why it is important to rethink our obscenity laws. The law may have been well-meaning but it is being abused and manipulated for narrow gains. The meaning of ethics and morality is subjective and ever-evolving. Holding others to a watertight standard of morality and a rigid notion of what morality is supposed to look like, is archaic and unjust.
Section 294 needs to be amended to suit the changing times. Doing away with the overbreadth and vagueness, the obscenity provisions should be carefully worded in a way that they only punish non-consensual and intentional vulgarity. It shouldn’t be a wide sweeping umbrella provision that punishes each and every public act that’s seemingly obscene or annoying to a few.
I believe that a bottoms-up approach is of utmost importance in bringing about any social change. And so, this change must start from you and I. Let’s not be condescending to public display of affection, let’s question our own biases and let’s not threaten or abuse the couples we find in our neighbourhood parks and streets. Let the lovers be, let love be.
Varsha is a lawyer and a postgraduate student at National Law School of India University, Bengaluru. She has researched and written on human rights, right to privacy, freedom of speech and inter-sectional feminism. She also loves reading history, poetry and fantasy fiction