SEXUAL INTENT AND OBSCENITY

• 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 their 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. 

• 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,  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.

• 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. 
• 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.” 

• 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 vs. the State of Maharastra )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 has said, holding D H Lawrence's book, Lady Chatterley Lover', to be 'obscene' under section 292 of the Indian Penal Code, 1860, which punishes the sale of obscene books, pamphlets, etc.

6. Obscenity laws in India

• Under the Indian Penal Code (IPC), sections 292, 293 and 294 deal with the offence of obscenity.
• Section 292 says that any content shall be deemed to be obscene if it is lascivious or appeals to the prurient interest, or if its effect tends to deprave and corrupt persons likely to read, see or hear the content. 
• This section prohibits the sale or publication of any obscene pamphlet, book, paper, painting, and other such materials.
• Section 293 criminalises the sale or distribution of obscene objects to anyone who is under the age of 20, or an attempt to do so.
• Although it is a bailable offence, the maximum punishment for the first conviction is three years of imprisonment and a fine up to Rs 2,000, and for the second conviction seven years with a fine up to Rs 5,000.
• Section 294 prohibits obscene acts and songs in public spaces. 
• The maximum punishment for the person convicted under this charge is three-month jail and a fine.
• With the advent of the digital age, laws were made to criminalise obscene conduct on the internet also.
• With the advent of the digital age, laws were made to criminalise obscene conduct on the internet also. 
• Section 67A of the IT Act deals with material containing a sexually explicit act etc in electronic form. The Punishment is five years and Rs 10 lakh (first conviction) or seven years and Rs 10 lakh (second conviction).