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

Justice Kauser Edappagath said society’s morality and some people’s sentiments cannot be the reason for prosecuting a person. “What is considered as morally wrong is not necessarily legally wrong,” the judge said.

The POCSO case

In June 2020, a Kerala-based women’s rights activist, posted a video on social media that showed her two children, aged 14 and 8 years, painting on her “semi-nude torso” with the hashtag “Body Art and Politics”.

There was outrage, and she was accused of subjecting her children to an obscene act. Police registered a case, and in a final report filed at the Additional Sessions Court, Ernakulam, charged her with offences under Sections 10 read with Section 9 (n), Section 14 read with Section 13 (b), and Section 15 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The offences under Section 9 (n), read with Section 10, involve sexual assault by a child’s relative. Sections 13-14 are about using children for pornographic purposes and its punishment. Section 15 of the Act lays down the punishment for storing child pornographic material.

The Ernakulam court granted her bail but refused to discharge her, reasoning that there were grounds for assuming she committed the offences.

IT Act and JJ Act

The police also charged the activist under Section 67B (a), (b), and (c) of the Information Technology (IT) Act, 2000, and Section 75 of the Juvenile Justice (JJ) Act, 2015.

Section 67B (a) (b) and (c) of the IT Act lays down the punishment for publishing or electronically transmitting obscene material, which depicts children in sexually explicit acts. Section 67B (a) is attracted when the material depicts children engaged in sexually explicit acts, and Section 67(B) (b) is attracted when children are depicted in an obscene, indecent, or sexually explicit manner.

Section 67B (c) is about the cultivation, enticement, or induction of children into online relationships for sexually explicit acts.

Section 75 of the JJ Act prescribes punishment for cruelty to children, which includes assaulting, abandoning, abusing, exposing, and wilfully neglecting them to cause unnecessary mental or physical suffering.

What the court said

After viewing the video, the court said that although it showed the activist’s son painting her chest, the crucial question was whether there was any sexual intent on the mother’s part.

Dismissing the POCSO charges against her, the court said that Sections 9 (n) and 10 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.

It also includes “any other act with sexual intent” involving physical contact, without penetration, the court said.

“There is nothing wrong with a mother allowing her body to be used as a canvas by her children to paint to sensitise them to the concept of viewing nude bodies as normal,” the court said. The essential ingredient of “sexual intent” in POCSO offences was missing in this case.

Quashing the POCSO charges under Sections 13 (b) and 14 of the Act that involve using children for sexual gratification in any form of media, the court said, “There is nothing to show that the children were used for pornography.”

On the use of Section 15 (punishment for storing pornographic material involving children), the court said the children in the video were clothed, and participating in a harmless and creative activity. “Hence, the offence under Section 15 also would not lie,” the court said.

Observing that the lower court had “completely overlooked the context” in which the video was published, the High Court discharged the activist of the remaining charges under the IT and JJ Act(s). “There is no sufficient ground for proceeding against the petitioner,” the court said.

In its order dated June 5, the court said that a mother-child relationship is one of the “most solemn and pious relationships”. Examining the statement of the activist’s children, the court said, “The children do not have a case that they were sexually exploited in any manner.”

“Bodily autonomy”, the court said, meant the freedom to make one’s own choices about their body, but “this right is diluted or denied to the fairer sex”. Relying on the Supreme Court’s 2018 ruling in ‘Joseph Shine v. Union of India’, the court underlined women’s autonomy as a facet of human dignity.

In ‘K.S. Puttaswamy v Union of India’ (2017), a nine-judge Bench of the Supreme Court unanimously recognized the right to privacy as a fundamental right under Article 21 of the Constitution, and declared bodily autonomy to be an integral part of it, the court said.

Clearing the accused of charges under Sections 67B (a), (b), and (c) of the IT Act, the court said that Section 67B (b) is attracted only when the material “depicts children in an obscene or indecent, or sexually explicit manner”.

Definition of obscenity

According to Black’s Law Dictionary, ‘obscene’ means “extremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate”.

The court referred to the Constitution Bench ruling in ‘Ranjit D. Udeshi v. State of Maharashtra’ (1965) where the Supreme Court followed the ‘Hicklin test’ that was laid down in the 1868 ruling in the UK, ‘Queen vs. Hicklin’.

The test is whether the “tendency of the matter charged as obscene must be to deprave and corrupt those, whose minds are open to such immoral influences and into whose hands a publication of the sort may fall,” the top court had said, holding D H Lawrence’s book, ‘Lady Chatterley’s Lover’, to be ‘obscene’ under Section 292 of the Indian Penal Code, 1860, which punishes the sale of obscene books, pamphlets, etc.

However, in 2014, in its ruling in ‘Aveek Sarkar v. State of Bengal’, the top court applied the contemporary community standards test, which says ‘obscenity’ should be gauged according to standards that “reflect the sensibilities” and “tolerance levels of an average reasonable person”.

In the ‘Aveek Sarkar’ case, Sportsworld magazine and Kolkata-based newspaper Anandabazar Patrika reproduced an article alongside a nude photograph of tennis star Boris Becker and his wife that was originally published in the German magazine Stern. This led a lawyer to file a case against the editors of the publications under Section 292 IPC. However, the court held that a nude picture cannot be called obscene unless it tends to arouse feelings or reveal an overt sexual desire.

In the 1996 case ‘Bobby Art International v. Om Pal Singh Hoon and Others’, 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.

Observing that the film’s “objectionable scenes” must be considered in the context of the message that it was trying to send, the court allowed the film’s release.

The Kerala High Court asserted that “nudity and obscenity are not always synonymous”, and it was wrong to consider nudity immoral. “This is a State where women of certain lower castes had once fought for the right to cover their breasts. We have murals, statues, and art of deities displayed in the seminude in ancient temples” all over the country, the court said, adding that such paintings are considered artistic, or even holy.

“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,” the court said while providing examples of men’s body painting traditions during Puli Kali folk festivals and Theyyam rituals in Kerala.

Lamenting the 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”, the court said that Rehana’s intention was to expose precisely these double standards.