It’s a strange paradox. None of the several hundred people who attended “The AIB Roast of Ranveer Singh and Arjun Kapoor” in Mumbai late in December took offence to what was said or done. However, when the event organised by a group of young people calling themselves All India Bakchod was posted on YouTube last week, it attracted the ire of the Maharashtra government and a couple of groups claiming to represent “Indian culture”.  The clamour got so loud, AIB tweeted on Tuesday evening to announce that it had decided to take down the three-part video from the internet.

One of these groups, the Brahman Ekta Seva Santha, demanded that an FIR be lodged against the organisers, directors, producers and actors for obscenity as “it was an attack on Indian culture”. The statements of various Christian organisations have also been recorded by the Mumbai police as these groups have taken offence to the participants’ mockery of Catholic priests.

Under Article 19 of the Constitution, each person has the right to free speech and expression, but the State may restrict this right in the interests of decency and morality. This is exactly what Section 294 of the Indian Penal Code seeks to do as it makes it an offence to sing, recite or utter “any obscene song, ballad or words in or near any public place” to the annoyance of others.

Annoyance of others

Thus, the first element to constitute the offence under Section 294 is to prove that the act caused annoyance to others. In the case of Narendra H. Khurana in 2003, the petitioner complained that female dancers at the Blue Nile cabaret in Mumbai’s Colaba neighbourhood were performing semi-nude dances. The question for consideration in that case was as follows:

“Whether the nude cabaret dances which are per se indecent and obscene, held in a restaurant on purchase of tickets would warrant prosecution under Section 294 of the Indian Penal Code in the absence of express evidence of annoyance by any of the persons who attend such shows?”

The Bombay High Court held that that mere performance of an obscene or indecent act is not sufficient, but there must be “a further proof to establish that it was to the annoyance of others”.

But the court held that the section does not limit the scope of the word “others” to mean the person who is the victim of the obscene act. It is enough if the obscene act is committed in public and causes annoyance to anybody, be it the contemplated victim of the offender or not.

In the case of the AIB roast, individuals also purchased tickets to attend the show, but as none of the individuals who attended the event have actually complained, one can safely conclude that it did not cause any annoyance to the attendees. The question therefore is whether the individuals who were annoyed by watching the event on YouTube constitute “others” under Section 294 of the IPC.

Persons actually witnessing the act

The Bombay High Court has clearly stated that the question as to an act being to the annoyance of the others cannot be considered objectively without reference to the persons actually witnessing the act. The court went on to state that:

“…it could not have been the intention of the Legislature that even if a particular obscene act done in a public place is enjoyed by all those witnessing the same without in any way getting annoyed thereby, it can still be considered to be an offence under the section, if looking at it objectively, the Court finds that it would have annoyed others who were not actually present to witness the said act.”

What this essentially means is that, even if Karan Johar is not offended by a joke made by Ranveer Singh about his sexual orientation, it is sufficient if Karan Johar’s mother, provided she was in attendance (which she was), is annoyed. But the members from the various groups who have taken offence to the YouTube video were not in attendance at the event. This means AIB are in the clear.