The POCSO Act: ‘Sexual intent’ in POCSO, definition of obscenity

What’s in today’s article?

• Why in News?
• About POCSO Act
• The Recent Case
• The Kerala HC’s Verdict
• Definition of Obscenity

 

 Why in News?

• Kerala HC recently quashed a case filed under India’s child protection law - the POCSO Act, against a woman accused of subjecting her children to an obscene act.

 

The Protection of Children from Sexual Offences (POCSO) Act:

• About:
  • It is the first comprehensive law in the country dealing specifically with sexual abuse of children, enacted in 2012 and is administered by the Ministry of Women and Child Development.
  • It was intended to protect children from sexual assault, sexual harassment and pornographic violations, as well as to establish Special Courts for such trials.
  • In 2019, the Act was amended to strengthen the penalties for specified offences in order to deter abusers and promote a dignified upbringing.
• Key provisions:
  • Gender-neutral legislation: The Act defines a child as "any person" under the age of 18.
  • Non-reporting is a crime: Any person in charge of an institution (excluding children) who fails to report the commission of a sexual offence involving a subordinate faces punishment.
  • No time limit for reporting abuse: A victim may report an offence at any time, even years after the abuse has occurred.
  • Keeping victim’s identity confidential: The Act forbids the disclosure of the victim's identity in any form of media unless authorised by the special courts established by the Act.
• Concerns:
  • Such abuse is on the rise: Particularly since the Covid-19 outbreak, when new forms of cybercrime have emerged.
  • Lack of awareness or knowledge: On the part of minor girls, boys, parents and society as a whole.

 

The Recent Case:

• In 2020, a Kerala-based women’s rights activist, posted a video on social media that showed her two children (8 and 14), painting on her “semi-nude torso”.
• There was outrage, and Police registered a case charging her with offences under the POCSO Act, 2012.
  • The offences under the Act involves sexual assault by a child’s relative and using children for pornographic purposes.
• The police also charged the activist under -
  • The Information Technology (IT) Act, 2000 [for publishing or electronically transmitting obscene material, which depicts children in sexually explicit acts], and
  • The Juvenile Justice (JJ) Act, 2015 [for depicting children in an obscene, indecent, or sexually explicit manner].

 

The Kerala HC’s Verdict:

• Dismissing the POCSO charges against her, the court said the provisions of the POSCO Act are attracted when a child’s relative commits “sexual assault”.
• However, “sexual assault” [under Section 7 of the Act] requires “sexual intent” while touching the child’s private parts or making the child touch one’s own or another person’s private parts.
• The essential ingredient of “sexual intent” in POCSO offences was missing in this case, also there is nothing to show that the children were used for pornography.
• There is nothing wrong with a mother allowing her body to be used as a canvas by her children to paint to sensitise them.
• Relying on the SC’s rulings in
  • K.S. Puttaswamy v Union of India (this 2017 case recognised the right to privacy as a fundamental right under Article 21 of the Constitution) and
  • Joseph Shine v. Union of India (this 2018 case read down Section 497 of the IPC),
  • The court underlined women’s bodily autonomy as a facet of human dignity.
• Clearing the accused of charges under the IT Act, the court said that the provisions of the Act are attracted only when the material depicts children in an obscene or indecent, or sexually explicit manner.

 

Definition of Obscenity

• The SC:
  • In 1996, the top court said that depicting nudity and sexual violence in the film ‘Bandit Queen’ did not amount to obscenity as it was done to underscore a social reality.
  • In 2014, the top court held that a nude picture cannot be called obscene unless it tends to arouse feelings or reveal an overt sexual desire.
• The Kerala HC:
  • Asserted that “nudity and obscenity are not always synonymous”, and it was wrong to consider nudity immoral.
  • We have murals, statues, and art of deities displayed in ancient temples all over the country, and such paintings are considered artistic and holy.
  • While providing examples of men’s body painting traditions during Puli Kali folk festivals and Theyyam rituals in Kerala, the court said -
    • “Even though the idols of all Goddesses are bare-chested, when one prays at the temple, the feeling is not of sexual explicitness but of divinity.”
  • These are double standards that allow men to walk around without shirts while women’s bodies are “overly sexualised” and construed as something “meant for erotic purposes”.

 

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Q1) What is the Joseph Shine v. Union of India case?

In 2018, the SC struck down Section 497 of the IPC that criminalised adultery, ruling that it was unconstitutional and violated women's right to equality in treating them as inferior to their husbands.

 

Q2) What is the Juvenile Justice (JJ) Act 2015?

The Juvenile Delinquency Law and the JJ Act 2000 (Care and Protection of Children Act) were repealed by the JJ Act 2015. It permitted the trial of juveniles violating the law between the ages of 16 and 18 as adults in scenarios where the offences had to be ascertained.

 

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Source: ‘Sexual intent’ in POCSO, definition of obscenity: Why Kerala HC threw out case