Whether Showing off a middle finger to other is illegal?
An obscenity is any utterance or act that strongly offends the prevalent morality of the time. However, the term obscenity is nowhere defined in Indian Laws. Obscenity is often defined as “lewd, impure, indecent and calculated to shock the moral sense of man by a disregard of chastity or modesty.[1]
Is showing of Middle Finger constitute an act of Obscenity?
‘Middle Finger’, also known as ‘The Finger’ is construed as a ‘universal sign of disrespect’.[2] In western culture, the said Act is considered as an obscene hand gesture.[3] Indian Courts have recognized the nature of such Act. Delhi District Court,[4] recognized in various matters that showing of Middle finger is an indecent and obscene gesture.
Obscenity in Private and Public place (with punishments)
In the year 2016, Maharashtra High Court clarified that, if any action is done in an enclosed placed or private place, where public transgression is not possible, then such action would not come under the purview of Obscenity under Section 294 of IPC.[5] If showing ‘middle finger’ is construed to be as an act of obscenity, it can’t be interpreted in the context of Section 294 of IPC. Hence, it is conclusive that Section 294 of the IPC would not be available if such an act has been done in any private place.
However, Section 294 can be invoked, if obscene acts are committed in public or obscene words are spoken in public. The person will be punished with imprisonment up to 3 months or fine or both. This section is not gender-specific so, male or female can be a victim or the offender. The penalty will depend upon the severity of the offence. Showing the middle finger in public might attract the penal provisions.
If the Act affronts to the Decency and Modesty of a Woman
Section 509 of IPC states that “Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.”
If a person does such actions, with the intention to outrage the modesty of Woman, then such Act will come under the purview of Section 509 of IPC, with the punishment extending up to one year or with fine or with both. Again, if the Act has been done ‘to insult woman’ and not ‘modesty of a woman’ it would not attract Section 509. Insulting the modesty of a woman is an essential ingredient in order to attract this offence.[6]
What if a person acts in frustration without ulterior motives?
As has already been stated, the intention of the person is essential when it comes to considering Section 509 of IPC. However, in order to attract Section 294 of the IPC intention does not form an essential ingredient.
The main ingredient to attract Section 294 are:
- an act must have been done in a public place, or a song, ballad or words must have been sung, recited or uttered in, or near any such place;
- the act, song, ballad or words must be obscene; and
- the same must cause annoyance to others.
If it is presumed that a person shows his middle finger to any other person at a public place, it would pass the first ingredient of Section 294. It is settled that showing middle finger is an obscene gesture globally, therefore it passes the second ingredient as well. Finally, a mere annoyance on others would make such an act pass the third ingredient as well. Hence, if any person feels annoyed by someone who shows middle finger to him or her at the public place may bring an action against that person under Section 294 of IPC. The punishment for it extends to three months, or with fine, or with both.
Do Courts sentence stringent punishment under Section 294?
The old trend was in favour of a lenient punishment under this section. In a case of 1923, the Rangoon High Court had held that a sentence of three months’ rigorous imprisonment under this section for using obscene language in a public place is unduly severe.[7]
In 1976, there was a shift in Court’s instance regarding offences under this Section; Allahabad High Court observed that it is time that, considering its large incidence, the legislature thought fit to amend the law and provide severe punishment for this offence.[8]
The Patna High Court has also taken a similar view and it has been held that as the teasing of schoolgirls has become very common, an offence, under this section when proved, must be looked upon with utmost severity and should be punished deterrent.
It should not be dealt with lightly.[9] It is clear that Court would take the stringiest possible punishment if the Act of the person comes under the purview of Section 294 of IPC; again, it would be pertinent to note that the intention of the offender needs to be proved.
What if a person does it at a workplace?
The Vishaka guidelines were a set of guidelines that were intended to protect women at the workplace. These were instituted by the Supreme Court of India in the year 1997. These are procedural in nature and state the method that is to be followed while dealing with cases related to the sexual harassment of women.
It defines sexual harassment as an unwanted sexual determination which is directly or impliedly intended to cause the following:
- Physical contact or advances.
- A demand or request for sexual favours.
- Sexually coloured remarks.
- Showing pornography.
- Any other unwelcome conduct whether it is physical, verbal or non-verbal.
If a person does such Act which comes under any of the above-stated cases, the employer will take necessary action. If the person’s act violates any provision of law, the employer would need to file a Police complaint against the offender.
Author: Rohit Pradhan
[1] In Re: B. Chandrasekaran vs Unknown, (1957) 2 MLJ 559
[2] Echard v. Kraft, 159 Md. App. 110
[3] Kipfer, Barbara Ann; Chapman, Robert L. (2008). American Slang. HarperCollins. p. 165. ISBN 978-0-06-117947-1. OCLC 191931926.
[4] State v. Surender Kumar Sharma, 02402R0059762011; See also, State v. Sharad Duggal, 421/2014;
[5] Amardeep Singh Chudha and Ors. v. The state of Maharashtra, W.P. No. 127 of 2016
[6] Abhijeet J.K. v. State of Kerala, 2020 SCC OnLine Ker 703
[7] Parliam v King-Emperor AIR 1923 Rang 253 .
[8] Zafar Ahmad Khan v State AIR 1963 All 105 [LNIND 1962 ALL 125], p 107, (1963) 1 Cr LJ 273.
[9] Sadan Prasad v State of Bihar (1970) Cr LJ 1323, (1969) Pat LR 257.
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