‘Sexual intent’ in POCSO, definition of obscenity, Why Kerala HC threw out case against activist (GS Paper 2, Judiciary)
Why in news?
- Kerala High Court recently, quashed a case filed under the POCSO Act, India’s child protection law, against a woman accused of subjecting her children to an obscene act.
- The mere sight of a woman’s naked upper body should not be deemed sexual by default and it should be considered in the context in which it was published, the court observed.
What was the POSCO 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.
Highlights of the judgement:
- 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.
- 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.
- 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”.
Bodily autonomy:
- “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:
- 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.
Conclusion:
- 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.
SAGAR SAMRIDDHI
(GS Paper 3, Infrastructure)
Why in news?
- Recently, the Union Minister of Ports, Shipping & Waterways (MoPSW) launched ‘SAGAR SAMRIDDHI’, the online dredging monitoring system in order to accelerate ‘Waste to Wealth’ initiative of the Ministry.
Details:
- This system has been developed by National Technology Centre for Ports, Waterways and Coasts (NTCPWC) the technological arm of MoPSW.
- The new technology brings in marked improvement against the old system of Draft & Loading Monitor (DLM) system.
Highlights:
- The system will bring in synergy among multiple input reports like daily dredging report, the pre and post dredging survey data before processing and producing real time dredging report.
- The ‘Sagar Samriddhi’ monitoring system will also allow Daily and monthly progress Visualisation, Dredger performance and downtime monitoring, easy location track data with snapshot of loading, unloading and idle time.
- This system strengthens the Atmanirbhar Bharat and Make in India vision of PM Modi.
Capabilities of ‘Sagar Samriddhi’ include:
- Real time dredging progress report
- Daily and monthly progress Visualisation
- Dredger performance and downtime monitoring
- Easy location track data with snapshot of loading, unloading and idle time
Addendum to the Dredging Guidelines 2021:
- In March 2023 Ministry issued Addendum to the Dredging Guidelines 2021 for Major Ports for disposal of dredged material by incorporating a necessary provision in bidding documents which will help in reducing the dredging cost in form of 'Waste to Wealth’.
- The annual maintenance dredging at Major Ports and Waterways is around 100 million cubic meters, for which about Rs.1000 crores are spent each year by the Ports and IWAI.
- Now with implementation of the Addendum of the Dredging guidelines and by using the Sagar Samriddhi, online dredging monitoring system, the dredging cost will be greatly reduced along with bringing in more transparency and efficiency in the overall system.
- Presently Cochin Port and Mumbai Port, have adopted the system and on New Mangalore Port and Deendayal Port it is running on trial basis.
- Now, MoPSW has mandated all Major Ports and lWAl to monitor the dredging activity through this system with customisation from NTCPWC. Accordingly, new dredgers will be using this system along with the old dredgers, which will be upgraded and equipped with the new system.
About NTCPWC:
- The NTCPWC was established under the Sagarmala Programme of MoPSW with the total investment of ₹ 77 Crores at IIT Madras which was inaugurated by the Minister on 24th April 2023.
- The aim of the centre is to enable research & development for the marine sector, enabling solutions towards achieving the ultimate goal of building a robust marine industry in the country.
- This state-of-the-art centre has world class capabilities for undertaking the 2D & 3D investigations of research and consultancy nature for the Port, Coastal, and Waterways sector across all disciplines.
WHO report highlights significant impact of 'Har Ghar Jal' Program on Public Health and Economic Savings
(GS Paper 2, International Organisation)
Why in news?
- Recently, a groundbreaking report of WHO highlighting the substantial benefits of the 'Har Ghar Jal' program in India was released.
Focus:
- The ‘Har Ghar Jal’ report focuses on diarrheal diseases as they contribute significantly to the overall disease burden related to water, sanitation, and hygiene (WASH) issues.
- The analysis underscores the urgent need to address these diseases and the potential for substantial gains in public health and economic well-being.
Key Highlights:
- The report estimates that ensuring safely managed drinking water for all households in the country could avert nearly 400,000 deaths caused by diarrheal diseases and prevent approximately 14 million Disability Adjusted Life Years (DALYs) related to these diseases.
- This achievement alone would result in estimated cost savings of up to $101 billion.
- Prior to 2019, the situation of water supply in rural areas was challenging. The report reveals that in 2018, 36% of India's total population, including 44% of the rural population, lacked access to improved drinking-water sources on their premises.
- The direct consumption of unsafe drinking water had severe health and societal consequences. The analysis indicates that in 2019, unsafe drinking water, along with inadequate sanitation and hygiene, contributed to 1.4 million deaths and 74 million DALYs globally.
Related SDGs:
- The World Health Organization (WHO) monitors various Sustainable Development Goal (SDG) indicators, including the proportion of the population using safely managed drinking water services (Indicator 6.1.1) and mortality related to unsafe water, sanitation, and hygiene (Indicator 3.9.2).
- WHO has developed methods and tools to estimate the health gains associated with improvements in water, sanitation, and hygiene, particularly in reducing diarrheal diseases and other related health outcomes.
Universal coverage:
- The report emphasizes the tremendous time and effort saved for women and girls through the provision of tap water. In 2018, women in India spent an average of 45.5 minutes daily collecting water to meet household needs.
- Overall, households without on-premises water spent a staggering 66.6 million hours each day collecting water, with the majority (55.8 million hours) occurring in rural areas.
- Universal coverage through tap water provision will result in substantial savings by eliminating the need for daily water collection efforts.
- The rural tap water connections increased from 16.64% in 2019 to 62.84% within a span of 41 months, representing an average annual increase of 13.5% compared to a mere 0.23% per annum.
About ‘Har Ghar Jal’ programme:
- The Har Ghar Jal Programme, implemented by the Jal Jeevan Mission under the Ministry of Jal Shakti, was announced by Prime Minister Shri Narendra Modi on August 15, 2019.
- The program aims to provide every rural household with affordable and regular access to an adequate supply of safe drinking water through taps.
- The program's components align with the WHO/UNICEF Joint Monitoring Programme for Water Supply, Sanitation, and Hygiene (JMP) to monitor progress on SDG 6.1 for safely managed drinking water services.
