Woman in bralette & mini-skirt in Delhi Metro goes viral. Here’s what indecency laws say

Recent videos of a woman on the Delhi metro dressed in a DIY bralette and a skirt have gone viral on social media, inviting comments ranging from condemning to explicit.

This has prompted a debate on ‘obscenity’ and freedom of expression in India. India Today takes a look at the legal issues that these viral photos and videos have raised.

WHAT DOES THE OBSCENITY LAW SAY
Section 292 of the Indian Penal Code (IPC) prohibits the sale, distribution, or publication of obscene material. It also provides the only available definition of ‘obscene’ on the IPC.

According to the provision, “A book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”

The section that could come into play in the current scenario is Section 294 of the IPC, which prescribes punishment for ‘obscene acts and songs’ as, “Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad 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 with both.”

While these have generally been understood as subjective and vague terms, other laws consider the issue of ‘obscenity’ and ‘indecency’.

Indecent Representation of Women (Prohibition Act), 1986: The act punishes the coarse representation of women, which means ‘the illustration in any other manner of the figure of women; her from or any other part thereof in such way as to have the effect of being indecent, or outrageous to, or denigrating women, or is likely to deprive, corrupt or injure the public virtue or morals.’

The Act prescribes varied punishments as follows:

â€â First offence: Imprisonment up to two years and a fine of Rs 2,000.

â€â Repeat offence: Imprisonment up to five years and fine of Rs 10,000 to Rs 1 lakh.

With the advent of the internet age, the Information Technology Act provisions also came into existence.

Information technology Act Section 67(A) addresses the issue of online obscenity. The Section prescribes ‘punishment for publishing or transmitting material containing a sexually explicit act, in electronic form’.

“Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees,” according to the provision.

The provision makes it clear that the publication of sexual content on a social media site will lead to a punishment. Speaking to India Today, senior Advocate Vikas Pahwa said the ‘obscenity’ definition under Indian law is ‘subjective’.

“The concept of obscenity in our country is dependent on the people who are expected to look at the thing. It depends on the standard of morality of the people. There is a difference between vulgarity and obscenity. What we saw on the Delhi Metro was vulgar and outrageous.”

“Anything which tends to deprave and corrupt the minds of the people who are open to such immoral influences, shall be termed as obscene. This test, as per the Supreme Court, is gauged from the perspective of a reasonable person, as it is purely subjective,” said Pahwa.

India has seen a few cases related to the Obscenity law, more recently with FIRs being filed against actor Ranveer Singh for a nude photoshoot, which he shared on social media, and against Model Milind Soman, for sharing photos of him running on the beach while nude. An older Obscenity case against Milind Soman for a nude photoshoot in 1995 had come to an end in 2009 after no evidence was submitted before the court.

In the 1971 KA Abbas case verdict, the Supreme Court observed that the “two terms of sex and obscenity are not always synonymous and it is wrong that merely the mention of the word sex is classified as essentially obscene or even indecent or immoral.” It was further observed that the standard for judging obscenity must not be that of the least capable and most depraved one but of the ‘rational’ person.

In the landmark 2014 Aveek Sarkar verdict, the Supreme Court adopted the ‘Community Standard Test’ to determine obscenity.

In this case, it was held that the picture cannot by itself be held as obscene ‘if it does not have within itself the tendency of arousing feelings or revealing any kind of overt sexual desire or designed to excite sexual passion in persons who see the picture or are likely to see it. Only such sexual materials will be held to be obscene if they can produce lascivious thoughts. However, the obscenity is to be judged from the point of view of an ordinary man of prudence’.

IS THE VIRAL DELHI METRO WOMAN LIABLE FOR AN OFFENCE?
The issue in a situation like this would be to balance the definition of ‘indecency’ with freedom of expression under Article 19 of the Constitution, which allows people to make their own choices.

In two separate instances, a woman wearing a mini-skirt and a bralette can be seen traveling in the Delhi Metro. Following the ‘community standards’ guidelines laid down in the Aveek sarkar Verdict of 2014, the question, therefore, is whether the clothing is ‘obscene’ or merely tasteless and imprudent in a public space occupied by persons from all sections of society.

Recently, demands were raised to file an FIR for obscenity against model Uorfi Javed, for her social media posts wearing skimpy clothing. The Ranveer Singh and Milind Soman incidents also resulted in FIRs being filed, though no judicial decisions have followed the registration of the FIR so far.

According to Advocate Pahwa, the woman seen in the picture could face the wrath of the criminal law or the DMRC rules, due to the choice of clothing. However, Advocate Saudamini Sharma believes that the choice of clothing is a subjective issue.

“While there are no direct laws on what a woman can or cannot wear in a public place and the Indian Penal Code, 1860, extends only to obscenity under Section 294, with changing societal values, the concept of what is obscene becomes dynamic and subjective as well, with courts deciding on a case to case basis over what constitutes obscenity in that context,” said Sharma.

Advocate Soutik Banerjee, however, argued that there was nothing ‘obscene’ about the choice of clothing.”People may find her clothes offensive, while some may even say it is ill-advised, but those are all unsolicited opinions. In my reading of the law, she has not committed any act which would attract the offence under Section 294 of the IPC,” he said.

One must remember the judgment of the Supreme Court in Pawan Kumar vs State of Haryana (1996) where the idea of obscenity was held to be continuously evolving and that courts have to keep pace with the changing times. “The Metro passenger is seen minding her own business, causing no nuisance or annoyance to anyone. Those triggered by her clothes should seek help for their triggering mechanism, but that help will not lie in criminal law,” says Bannerjee.

DOES THE PERSON WHO FILMED THE VIDEO FACE ANY CRIMINAL OFFENCE?
Section 66E of the IT Act, 2000, deals with the violation of privacy and provides punishment for capturing, publishing or transmitting the image of a private area of any person without his or her consent. This includes capturing or publishing images of a woman’s private areas without her consent.

In addition, Section 67 of the IT Act, 2000, prohibits the publication or transmission of obscene material in electronic form. This includes any material that is lascivious or appeals to the prurient interest and tends to deprave and corrupt people. If a person is found guilty of violating the provisions mentioned above, he or she may be punished with imprisonment for up to three years and/or a fine.

According to advocate Soutik Bannerjee, the person who took the now-viral photos and videos could be held liable under the IT Act.

“Those who take photos and videos of a passenger without permission, and then zoom and edit and upload them on social media, warrant strict punishment under the law for offences under the IPC and IT Act. It’s time we question the mind behind the lens and not the body in front of it,” says Bannerjee.

Senior advocate Ramesh Gupta, however, argues that the laws relating to filming in public places are unclear. “If there is a photo/video taken of a woman’s private parts or a photo that is pornographic or invades privacy, there are laws such as the IT act etc to punish, but is there any rule that says no one can take a photo/video in a public place?

If there is a rule by the Delhi metro to prohibit videography or photography on the train, then they can take action, but if there is no prohibition, one cannot say that taking a video in a public space is barred,” says Gupta.

Advocate Saudamini Sharma also pointed out that the issue is complicated and includes grey areas.

“While it is not illegal to record a video in public places, as long as the recording does not invade someone’s privacy or violate any other laws. However, if the video recording is done with the intent to harass or intimidate someone, or if it is used to distribute intimate or private images without consent, then it can be considered a criminal offense,” says Sharma.

However, Sharma points out that India does not have any law at present ‘that requires the consent of a person who is in a public place with no expectation of privacy. A recording of a person in a public place does not require consent.’

DMRC’S STAND
The DMRC has its own rules under the Delhi Metro Act. Its Section 59 allows for punishment for ‘acts of indecency or obscenity’ in the Metro, with removal from the train and Rs 500 fine.

Section 59 says, “any person, in any carriage or upon any part of the metro railway, (a) is in a state of intoxication; or(b) commits any nuisance or vandalism or act of indecency, or uses abusive or obscene language; or (c) willfully or without excuse interferes in any way with the comfort of any passenger, he shall be punishable with fine which may extend to five hundred rupees and shall also be liable to forfeiture of the fare which he may have paid or any pass or ticket which he may have obtained or purchased, or be removed from such carriage or part by metro railway official authorised by the metro railway administration in this behalf.

India Today contacted the DMRC for comment on the current controversy. The response communication from Anuj Dayal, the Principal Executive Director, Corporate Communications for DMRC, said, “DMRC expects its commuters to follow all social etiquette and protocols which are acceptable in the society.

Commuters should not indulge in any activity or wear any attire which could offend the sensibilities of other fellow passengers. DMRC’s Operations and Maintenance Act lists indecency as a punishable offence under Section 59. We appeal to all our passengers to kindly maintain decorum while traveling in a public transport system like the Metro. However, issues such as the choice of clothing while traveling is a personal issue and passengers are expected to self-regulate their conduct responsibly.”

Speaking to India Today, a DMRC spokesperson also pointed out that no complaint had been received by the DMRC regarding either the clothing worn by women passengers or from the women passengers regarding their photo/video being taken while on the metro.

While the law involved in the matter is complicated and unclear, the social media condemnation of the clothing of women seems to indicate the larger public opinion of freedom of expression and indecency in public spaces.