Can kissing in public place create obscenity in Bangladesh? A Socio-legal perspective
Md Mustakimur Rahman writes for DOT :
Richard Handyside, a well-known publisher, published a book named The Little Red Schoolbook in Denmark in 1969 and later in Belgium, Finland, France, West Germany, Greece, Iceland, Italy, the Netherlands, Norway, Sweden, and Switzerland as well as several non-European countries. This book contained a 26-page section concerning ‘sex’. He then wanted to sell this book in England through some advertisements.
Subsequently, this book became subject of massive press comment contained positive and negative views. Eventually, Handyside received a number of complaints and the Director of Public Prosecutions asked the Metropolitan Police to investigate whether the book breached obscenity laws. During the investigation, more than 1000 books were temporarily seized under the Obscene Publications Act. In addition, lots of leaflets, posters, and correspondence relating to the book were seized. Handyside argued that freedom of expression is a fundamental right which was violated by seizing his books and other materials. He also argued that the book faced no problem in other European countries and therefore, should not face any problem in England.
The European Court of Human Rights (ECtHR) used the doctrine of the margin of appreciation and held that the interference in Handyside’s freedom of expression was both prescribed by law, having a legitimate aim and necessary in a democratic society.
Based on the judgment above, a book could be legal in one country, but that does not mean the book should be legal everywhere. Each and every country is unique 8More on Page 7, Col
(From Page 8) and distinct and possess irreplaceable social and cultural practice. As a result, the definition of ‘obscenity’ may vary from country to country which we have seen through the case of Handyside. He then later was found guilty of possessing obscene publications. This is a landmark judgment that established the notion that state can impose restriction and penalty if any expression is not legitimate and against the social and cultural norm of the state.
Couple of months ago, a picture went viral on social media which contains a couple was having lip-locked kiss in public. Unsurprising to see the different comments shared by different people. Some are saying that kissing in public is not wrong, it is a method of expressing love and people are free to express anything. Others are saying that showing love publicly is disturbing and harmful for the society. The debate is ongoing and a hot topic at this moment. The question is that whether kissing in public is legal in Bangladesh or not.
As we know that Public Displays of Affection (PDA) are some kinds of physical intimacy that take place in public, the question is that how much intimacy we can display? A simple answer is that anything that does not go beyond the context of cultural and social practice. Obviously, physical intimacy is something that is closely connected with the definition of “physical affection” which may define as “any touch intended to arouse feelings of love in the giver and/or the recipient.”
In general, Physical affection has been categorized into seven different types including holding hands, cuddling, backrubs, caressing/stroking, kissing on the face, hugging, and kissing on the lips. However, all of the acts do not create obscenity in public such as; holding a hand. Nonetheless, a question may arise that what actually we mean by the word of ‘obscenity’. Well, our Penal Code has not given any clear definition of ‘obscenity’ neither our Apex Court did. Although the Constitution of Bangladesh has ensured our freedom of thoughts and conscience and of speech; however, this right is subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence (Article 39). The reflection of this Constitutional provision can be seen in the Penal Code. Section 294 of the said Code provides that “Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene songs, 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.” As we see that if any act creates any obscene act in any public place then that would amount a crime under section 294 of the Penal Code.
Now the question is whether kissing in public creates any obscenity in Bangladesh or not. As mentioned above that there is no definition of ‘obscenity’ in the Penal Code; hence we have to rely on the social and cultural context of Bangladesh. No doubt that kissing is an expression of love that creates a strong bond between the partners. However, we must not forget the sentiment of the majority of Muslim people living in Bangladesh. Kissing in public could cause public annoyance which contradicts with section 294 of the Penal Code. Religious factor is one of the core factors behind the explanation of the concept of ‘obscenity’. It is a belief of the mass people that religiosity influences the level of physical contact in public. Similarly, religion may have contact with conservative values that may have an effect on all levels of PDA by younger participants. Furthermore, people with strong religious beliefs may be very unlikely to involve in physical contact in public due to the morals advised by their religion. Bangladesh is a country where more than 80% people are Muslims and the cultural practice that we have grown in Bangladesh is closely connected with Islam. Although do we do not practice Sariah Law in Bangladesh, but we did not adopt western practice such as kissing in public. We have our own Bengali culture and tradition and we have our own to express love in public. Kissing in public was not a cultural practice of our own neither it is now. As a result, this could create annoyance and disturbance in the society. Therefore, kissing in public could be a crime under section 294 of the Penal Code.
The writer is a Lecturer, Department of Law, Notre Dame University Bangladesh.