Kiss Of Love

There is something poisonous about a democracy in which couples are arrested for kissing. This reaction by the Government to the non-violent 'Kiss Of Love' protest proved the protestors point very effectively. Those who attack young people and vandalise cafes will go scot-free, the police will chose to lock up the peaceful protestors. It does not bode well for the 'freedom of expression' in our democracy if intolerant and violent groups are able to leverage Government institutions to prevent other citizens from exercising their rights.

A group called the 'Free Thinkers' organised the 'Kiss Of Love' as a protest against the increasing moral policing. The Facebook page for the site says of the event that - young bloods join their hands together to prove to the society that kiss is the symbol of Love. The protest was announced after Bhartiya Janta Yuva Morcha volunteers vandalised a cafe in Kozhikode claiming that they were prompted to do so by the "immoral activities" that took place in the cafe. Media speculation indicates that this was a reference to the footage of youngsters kissing in the cafe.

The Shiv Sena reportedly declared the protest a new form of  Love Jihad and said that it would cause sexual anarchy. In addition to the Shiv Sena, right wing activists from across the religious lines including the Yuva Morcha, ABVP, Bajrang Dal, Social Democratic Party of India and radical Hindu and Muslim groups were united in their protest against the 'Kiss Of Love'. Although the High Court refused a petition to prohibit the event, the police eventually rounded up and locked away the organisers and supporters of the 'Kiss Of Love'.

It is clear from this that the 'Kiss Of Love' participants were attacked from two different directions. On one hand, there was physical threat posed by the right wing 'anti-kiss' campaigners. On the other, the Police used to disperse the protest because of the law and order problem created by the anti-protest activists.

Situations where speakers are silenced by the Police because an unruly crowd creates pressure through its violence are what American jurist Harry Kalven was trying to describe when he coined the term 'Heckler's Veto' Kalven pointed out that, "if the police can silence, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker whom they do not approve."

The 'Kiss Of Love' incident is a classical illustration of this veto at work. There was no good reason why the police should have dispersed this non-violent and utterly reasonable protest. However, the unruly mob succeeded in creating a sufficiently hostile environment to achieve this. This is not the first time that an unruly aggressive mob has effected the fundamental rights of other citizens in India.

The 'Kiss Of Love' incident, therefore, follows Salman Rushdie's aborted appearance at the Jaipur Literary Festival to become a part of the several cases in which extremists are able to stifle expression by threatening violence and disruption.

Restricting speech in the interests of the public order was not permissible under the original text of the Indian Constitution. After the Supreme Court refused to allow the use of 'national security' exception to restrain speech in the interest of law and order, the Nehru government added 'public order' among the reasons for which the right to free expression may be restricted under our Constitution. This resulted in the Supreme Court permitting prior restraint of speech in the interest of maintaining law and order. For example in Babulal Parate v/s State of Maharashtra the court upheld anticipatory restriction of Article 19(1)(1) in the interests of public order, reasoning that 'public order must be maintained in advance in order to ensure it.'

Over time, the judiciary has become conscious as to how law is leveraged to silence speakers. Although the Supreme Court has never actually used the phrase, it has acknowledged the dilemma that is termed as the 'heckler's veto'. This was in S. Rangarajan v/s P. Jagjivan Ram where it said, "freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. The State cannot plead its inability to handle the hostile audience problem." Saying so, the Supreme Court indirectly signaled that it is the inability of the Police and the Government to curb the violent elements, that they in turn let out their frustration on the non violent citizens and use force on people supporting the rightful cause.

In 2013, a kissing protest was staged in a Turkish metro station in response to a morality campaign by Ankara authorities. The Police tried to prevent protestors from going into the station, and Islamists attacked the demonstrators, resulting in the stabbing of one person. A 'Kiss-in' held in Morocco to protest the arrest of two teenagers for kissing was also attacked by Islamists counter protestors.

It is a matter of concern, how extremists everywhere seem united in their opposition to expressions of affection. Take the Shiv Sena andits terming of the 'Kiss Of Love' event as an instance of 'Love Jihad' <make it a link for the article 'Ground Reality of Love Jihad> oblivious to the fact that extreme Islamist groups also support punishing all displays of public affection. Extremists groups have always been present and will always jockey for leverage. What is critical is that the laws and the State institutions should contain these extremist organisations instead of supporting them while they curtail other citizens democratic rights.

Robert Post, eminent First Amendment scholar and Dean of Yale Law School, wrote that a heckler's veto creates very bad incentives for those who oppose free expression since it permits an angry mob to use the law to silence speakers. This threatens the open public expression that is critical to democracy.

The 'Kiss Of Love' protestors were not the ones causing public disorder. That distinction belongs to the intolerant anti-protest activists who disrespected the protestors' autonomy. When this extremism is facilitated by the Government and Police, through its failure to distinguish between peaceful protestors and thugs who use law and order problems to threaten them, it becomes clear that our laws being used to facilitate heckler's veto, not to protect citizen's rights.