Introduction

The police are entrusted with the responsibility of prevention of cognizable offences; however, the Anti-Romeo Squads and Operation Majnu in Uttar Pradesh depict a pitiable tale of moral vigilantism. It refers to the actions of vigilant groups in enforcing a preconceived code of conduct based on personal morality, culture and without any legal authority. While at the legislative level, it is done by the Central/State governments, at the lower level, the police seek to enforce an ethical code of conduct under the garb of preventive measures. The actions of the police, in turn, motivate the private groups to oppress people under the justification of preservation of Indian culture and shielding it from the impact of westernization. An attempt has been made to capture the legal framework under which such activities are carried out. Additionally, the nature of rights violated has also been stressed upon. At the end, certain suggestions have been provided to deal with the mentioned state of affairs.

Legislative framework behind Preventive Measures

The Code of Criminal Procedure [“CrPC”] provides that preventive action can be taken by the police to suppress the commission of crimes. Section 149 empowers every police officer to interpose and prevent happening of any cognizable offence to the best of his ability.[1] A cognizable offence is one which is punishable with three years of imprisonment and as such, falls within the First Schedule of CrPC. Section 150 provides that every police officer shall pass on to the assigned superior, information of a design to commit any cognizable offence.[2] A police officer, upon receiving information about a design to commit any cognizable offence, is even empowered to arrest a person.[3] Furthermore, Section 144 provides that in cases of apprehended danger, the magistrate shall direct any person to abstain from a certain act or to give an order regarding the apprehended danger.[4] Whenever a police officer making an investigation believes that a search is necessary, then he may, after recording reasons for the same, proceed with his decisions without obtaining the permission of court.[5] With such laws in place, at the outset it may seem that the preventive measures can be carried out without any legal hindrances, but although the CrPC provides for such laws, there is a dearth of legal jurisprudence explaining the scope of the aforesaid sections.

Generally, moral vigilantism is done under the guise of ensuring safety of women and protecting them from eve-teasing and sexual harassment. The offences being cognizable in nature, the police are entitled to undertake preventive measures. However, it fails to understand the inherent restraints in the aforesaid legislative framework. In B. Kariyappa v Land Tribunal,[6] it was held that Section 149 does not empower a police officer to interfere with the civil rights of the people under the guise of preventing commission of offence. It refers to the rights a person acquires by being the citizen of a country. The police officer has to be ‘convinced’ that the activity, if not curtailed, will lead to a breach of peace. A police officer is one who holds his office under any of the legislations dealing with the police.[7]It does not include persons merely on whom certain police powers are vested.

Enforcing an ethical code of conduct

Moral vigilantism is the outcome of patriarchal mind-set of the people and differing moral standards. The judiciary has dealt with such standards by interpreting laws against obscenity, delivering verdicts on opening of night pubs and bars, apart from its heavy crackdown on Khap Panchayats, wherein the court observed that Khap Panchayats cannot perform ‘moral vigilantism’ and enforce their diktats by assuming to themselves the role of community guardians.[8]Section 292 of Indian Penal Code restricts sale of obscene books, etc. if it is lascivious or tends to deprave and corrupt persons when viewed as a whole. Section 293 forbids sale of obscene objects to young persons. Further, Section 294 provides that whoever causes annoyance to others by doing any obscene act in public space shall be punished. The police use the said provisions to file cases against posters, advertisement hoardings that it presumes to be ‘obscene’.

The age-old laws against obscenity are frequently used by police to justify acts of moral policing. Under ‘Hicklin test’, obscenity was determined by focusing on isolated aspects of entire work that could be deemed obscene, as well as its impact on vulnerable sections of society. The currently operational ‘community standards test’ provides that only those sex-related materials which when taken as a whole have a tendency of ‘exciting lustful thoughts’ can be held to be obscene, and it has to be checked from an average person’s perspective upon application of contemporary community standards.[9]Further, under Section 294, any act done in private space is not an obscene act.To condemn an act as obscene, it must be done in public space, where people must have free access to such space. A place where people have no right to enter into in a lawful manner cannot be said to be a public place. Mere verbal abuses do not come under the ambit of obscenity.[10]

Another law which provides excessive vigilant powers to the police is the Immoral Traffic Prevention Act, 1956 [“PITA”], which allows police to raid hotels if they suspect illegal activities. Such laws are being used to harass and arrest consenting couples. It is an extremely difficult task to determine the reasonable grounds on which the police can be allowed to do so. Section 15 of PITA empowers ‘special police officers’ to search the premises for offences punishable under PITA, without a warrant but only after recording reasonable grounds for the same, and if procurement of warrant would cause undue delay.[11]However, the search shall necessarily take place in presence of two female police officers and two other witnesses, one of which must be a woman. Further, where a magistrate has reason to believe from information received from the police or any other authorized source about the presence of a brothel, the magistrate is empowered to direct the police to enter such brothel, and produce the persons before him.[12]However, in Jiwanjot v State of Punjab [13]it was held that non-compliance with the aforesaid requirements does not vitiate the trial, and its effect is to be determined as per facts and circumstances of the case. Thus, apparently the powers vested to the police under PITA are wide enough to shield their acts of moral vigilantism.

Conclusion

All citizens possess a fundamental right to free speech and expression. Although it is subject to reasonable restrictions, the ambit of such restrictions needs to be clarified. Before taking a preventive measure, a police officer shall be convinced that a cognizable offence would be the necessary consequence of the alleged obscene activity. Further, the discretion given to the police needs to be curtailed to protect the privacy of individuals. All citizens are entitled to the fundamental right to privacy.[14]It can even be enforced against private vigilant groups since their actions interfere with the lives of the public at large.[15]Uncontrolled vigilantism causes permanent damage to the reputation of persons, and infringes the fundamental right of right to live with dignity.

Following are some of the steps that can be taken to curtail the unchecked growth of moral vigilantism:

Providing sensitivity training to the police personnel: It is imperative that the police personnel understand the significance of our constitutional values and the fundamental rights of the citizens of the India. For the same, the police shall be provided with sensitivity training, wherein real life situations shall be posed before them and they shall be provided a standard operating procedure to deal with it.

Reporting instances of moral vigilantism and undertaking adequate investigations: At times, the victims of moral vigilantism fail to exercise their rights due to lack of awareness and knowledge. Generally, such lapses in preventing commission of offences are committed by police personnel working at the lower levels due to lack of adequate training for the same. People shall be motivated to report instances of moral policing and the higher authorities shall keep a check on adequate investigations based on such reporting.

Providing compensations for reputational damage: Moral policing damages the reputation of the victims due to the conservative and patriarchal mind-set of the society. The police shall keep in mind that prevention of commission of offences does not result in infringement of fundamental right to live with dignity.

Framing laws against moral policing: In India, there is no law against moral policing, which highlights the nuances between moral policing and steps towards prevention of cognizable offences. This measure will adequately hinder both private and public groups from engaging in acts of moral vigilantism.

Spreading awareness among the masses about their rights in cases of moral policing: The rights compromised by acts of moral policing are the inherent rights provided to the citizens. They can only be protected if the citizens are well aware of the adequate course of action to protect them from moral policing.

The aforementioned measures can play a pivotal role in protecting the fundamental rights of the citizens by curtailing the menace of rising moral vigilantism in the country. Today, most of the actions by the police and private parties are shaped by public morality. While constitutional morality is based on the intention of the legislators, public morality largely stems from contemporary notions of morality among the masses. Adherence to the aforementioned measures would be imperative in reducing the divide between lawful and unlawful policing.

 [1] Section 149, Code of Criminal Procedure, 1973[hereinafter “CrPC]

[2] Section 150, CrPC
[3] Section 151, CrPC
[4] Section 144, CrPC
[5] Section 165, CrPC
[6] B.Kariyappa v. Land Tribunal, MANU/KA/0165/1988

[7]State of Punjab v. Barkat Ram, MANU/SC/0021/1961
[8] Shakti Vahini v. Union of India, MANU/SC/0291/2019
[9] Aveek Sarkar v. State of West Bengal, MANU/SC/0081/2014
[10] Om Prakash. State of MP, MANU/MP/0389/1989
[11] Section, Immoral Traffic Prevention Act [hereinafter “PITA”]
[12] Section 16, PITA
[13] Jiwanjot v. State of Punjab, MANU/PH/1115/2011
[14] Justice K.S Puttaswami v. Union of India, MANU/SC/1044/2017
[15] Zee Telefilms v. Union of India, MANU/SC/0074/2005

The article has been written by Jayesh Kumar Singh

This article was first published in the Blog namely The Criminal Law Blog