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‘Obscenity’ & ‘Sexual intent’ under POCSO Act

  • Published
    10th Jun, 2023
Context

Recently, the Kerala High Court has closed a case filed, against a woman accused of subjecting her children to an obscene act, under the POCSO.

Laws against Obscenity 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.
  • Any offense related to obscenity in electronic form can be tried under the IT Act and not under the IPC as Section 81 of the IT Act clearly states its overriding effect.
  • But as per the facts and circumstances of the case, provisions of both the IT Act as well as IPC could be attracted, as done in the case of Avnish Bajaj v. the State (NCT of Delhi), 2008.

Judiciary’s view:

  • In 2014, the judiciary used the Hicklin testto determine if something is obscene or not.
    • The Hicklin Testwas established in English Law after the case of Regina vs Hicklin (1868). 
    • According to it, a work can be considered obscene if any portion of it is found to “deprave and corrupt those whose minds are open to such influences”.
  • The test was most famously used by theSupreme Court to ban DH Lawrence’s Lady Chatterley’s Lover in the case of Ranjit D Udeshi vs State Of Maharashtra (1964).
  • However, in 2014, the apex court did away with the Hicklin Test while hearing the case of Aveek Sarkar & Anr vs State Of West Bengal and Anr, which was regarding the publication of a semi-nude picture of Boris Becker and his fiancee.
    • In its judgment, the court said “while judging as to whether a particular photograph, an article or book is obscene, regard must be had to the contemporary mores and national standardsand not the standard of a group of susceptible or sensitive persons”. 
    • It added that the photograph must be “taken as a whole” and seen with the context of what it wants to convey.

About the Protection of Children from Sexual Offences POCSO:

  • The POCSO Act, 2012 was enacted to safeguard the children’s interests. The POCSO Act, 2012 tends to protect the child from sexual offenses.
  • The act is gender-neutral and recognizes both girls and a boy as a victim of sexual violence.
  • This law defines a child as any person below the age of 18 years.
  • Forms of sexual offense: It defines different forms of sexual offenses including;
    • penetrative and non-penetrative assault
    • sexual harassment
    • Pornography
  • Sexual intent under POCSO:
    • The provision defining the offence of sexual assault against children under the Protection of Children from Sexual Offences (POCSO) Act must be looked at from the victim’s perspective and if the sexual intent is present then the offence is made out even without “skin-to-skin contact.”
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