Definition of Obscenity: POCSO Act

Context:

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.

Relevance:

GS II: Polity and Governance

Dimensions of the Article:

1. About Protection of Children from Sexual Offences (POCSO) Act, 2012
2. Contention/Criticisms around implementation of POCSO
3. About POCSO Amendment Act 2019
4. The Recent Case
5. Definition of Obscenity

About Protection of Children from Sexual Offences (POCSO) Act, 2012

• The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted to provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process.
• The framing of the Act seeks to put children first by making it easy to use by including mechanisms for child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts.
• The Act provides for a variety of offences under which an accused can be punished. It recognises forms of penetration other than penile-vaginal penetration and criminalises acts of immodesty against children too. Offences under the act include:
  • Penetrative Sexual Assault: Insertion of penis/object/another body part in child’s vagina/urethra/anus/mouth, or asking the child to do so with them or some other person
  • Sexual Assault: When a person touches the child, or makes the child touch them or someone else
  • Sexual Harassment: passing sexually coloured remark, sexual gesture/noise, repeatedly following, flashing, etc.
  • Child Pornography
  • Aggravated Penetrative Sexual Assault/ Aggravated Sexual Assault

Salient features of the Act

• The act is gender-neutral for both children and for the accused.
• With respect to pornography, the Act criminalises even watching or collection of pornographic content involving children.
• The Act makes abetment of child sexual abuse an offence.
• Defines a child as any person below eighteen years of age
• Provides for mandatory reporting of sexual offences, keeping with the best international child protection standards.
• Police cast in the role of child protectors during the investigative process: The police personnel receiving a report of sexual abuse of a child are given the responsibility of making urgent arrangements for the care and protection of the child.
• Provisions for the medical examination of the child in a manner designed to cause as little distress as possible
• Provision of Special Courts: that conduct the trial in-camera and without revealing the identity of the child, in a child-friendly manner.
• Timely disposal of cases: A case of child sexual abuse must be disposed of within one year from the date the offence is reported.
• Recognition to a wide range of form of sexual abuse against children: as punishable offences.
• People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the Act. The Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine.
• Child-friendly process: It also provides for various procedural reforms, making the tiring process of trial in India considerably easier for children. The Act has been criticised as its provisions seem to criminalise consensual sexual intercourse between two people below the age of 18.

Contention/Criticisms around implementation of POCSO

Criticism in Definition of child

• The Act defines a child as a person under the age of 18 years. However, this definition is a purely biological one, and doesn’t take into account people who live with intellectual and psycho-social disability.
• A recent case in SC has been filed where a women of biological age 38yrs but mental age 6yrs was raped.
• The victim’s advocate argues that “failure to consider the mental age will be an attack on the very purpose of act.”
• SC has reserved the case for judgement and is determined to interpret whether the 2012 act encompasses the mental age or whether only biological age is inclusive in the definition.

Issue with the Mandatory Reporting feature

• According to the Act, every crime of child sexual abuse should be reported. If a person who has information of any abuse fails to report, they may face imprisonment up to six months or may be fined or both.
• Many child rights and women rights organisation has criticised this provision. According to experts, this provision takes away agency of choice from children.
• There may be many survivors who do not want to go through the trauma of criminal justice system, but this provision does not differentiate.
• Furthermore, mandatory reporting may also hinder access to medical aid, and psycho-social intervention.
• It contradicts the right to confidentiality for access to medical, and psychological care.

Contradiction with the Medical Termination of Pregnancy Act, 1971

• The POCSO Act was passed to strengthen legal provisions for the protection of children below 18 years of age from sexual abuse and exploitation.
• Under this Act, if any girl under 18 is seeking abortion the service provider is compelled to register a complaint of sexual assault with the police.
• However, under the MTP Act, it is not mandatory to report the identity of the person seeking an abortion.
• Consequently, service providers are hesitant to provide abortion services to girls under 18.

Issue with Legal Aid

• Section 40 of the Act allows victims to access legal aid. However, that is subject to Code of Criminal Procedure.
• In other words, the lawyer representing a child can only assist the Public Prosecutor, and file written final arguments if the judge permits.
• Thus, the interest of the victim often go unrepresented.

Issue with Consent

• The law presumes all sexual act with children under the age of 18 is sexual offence.
• Therefore, two adolescent who engage in consensual sexual act will also be punished under this law.
• This is especially a concern where adolescent is in relationship with someone from different caste, or religion.
• Parents have filed cases under this Act to ‘punish’ relationships they do not approve of.

About POCSO Amendment Act 2019

• Increases the minimum punishment (including death penalty) for penetrative sexual assault, aggravated penetrative sexual assault.
• The earlier amendment allowed the death penalty only in cases of sexual assault of girls below 12 years but now it will be applicable to boys also.
• Adds assault resulting in death of child, and assault committed during a natural calamity, or in any similar situations of violence into Aggravated penetrative sexual assault.
• Tightened the provisions to counter child pornography. While the earlier Act had punishment for storing child pornography for commercial purposes, the amendment includes punishment for possessing pornographic material in any form involving a child, even if the accused persons have failed to delete or destroy or report the same with an intention to share it.
• The Act defines child pornography as any visual depiction of sexually explicit conduct involving a child including photograph, video, digital or computer-generated image indistinguishable from an actual child.

The Recent Case:

• In 2020, a women’s rights activist from Kerala posted a video on social media showing her children (aged 8 and 14) painting on her “semi-nude torso.”
• The video sparked outrage, and the police filed a case against her under the Protection of Children from Sexual Offences (POCSO) Act, 2012.
• The charges included sexual assault by a relative and using children for pornographic purposes.
• Additionally, the activist was charged under the Information Technology (IT) Act, 2000 for publishing or transmitting obscene material involving children and the Juvenile Justice (JJ) Act, 2015 for depicting children in an obscene or sexually explicit manner.

The Kerala HC’s Verdict:

• The court dismissed the POCSO charges, stating that the Act applies when a child’s relative commits “sexual assault.”
• It explained that “sexual assault” under Section 7 of the Act requires “sexual intent” involving touching the child’s private parts or making the child touch one’s own or another person’s private parts.
• In this case, the essential element of “sexual intent” was missing, and there was no evidence of the children being used for pornography.
• The court upheld the right to privacy and women’s bodily autonomy, citing previous Supreme Court rulings.
• Clearing the accused of charges under the IT Act:
• The court stated that the provisions of the Act apply only when the material depicts children in an obscene, indecent, or sexually explicit manner.

Definition of Obscenity:

• The Supreme Court (SC) in 1996 ruled that depicting nudity and sexual violence in the film ‘Bandit Queen’ did not amount to obscenity as it aimed to highlight a social reality.
• In 2014, the SC held that a nude picture cannot be considered obscene unless it arouses feelings or reveals overt sexual desire.
• The Kerala High Court (HC) asserted that nudity and obscenity are not always synonymous, and it is incorrect to deem nudity as immoral.
• The court pointed out that ancient temples across the country display murals, statues, and artwork of deities, which are considered artistic and sacred.
• The court provided examples of men’s body painting traditions during Puli Kali folk festivals and Theyyam rituals in Kerala to highlight cultural practices where nudity is not perceived as sexually explicit but associated with divinity.
• The court criticized the double standards that allow men to be shirtless while women’s bodies are overly sexualized and viewed primarily for erotic purposes.

-Source: The Hindu